What is willful blindness?
answer:

Willful blindness is a concept in federal law that says you cannot make yourself willfully blind, that is, ignore, an obviously illegal situation you are involved in. And if you do, you do so at your peril. Consider the prosecution of Annette Bongiorno, the 66 year old secretary of master Ponzi schemer and investment fraudster, Bernard Madoff. Bongiorno was a high school graduate with no skills other than shorthand and typing. She handled the books for hundreds of investment advisory accounts, most of them fraudulent. But, as she told a federal judge, she did what she was told by Madoff and didn’t know what was going on. However, the judge determined that she should have known that her boss’s financial success was a sham. She was told to fabricate and backdate a number of fictitious trades, which she did on her boss’s orders. She claimed that she never figured out the truth of what was going on. As a Jacksonville criminal defense lawyer, I have represented people charged in criminal conspiracies that claimed not to have know what was going on.

While this may be true, (both for Ms. Bongiorno and my clients) one cannot escape criminal liability by simply being an ostrich with one’s head in the sand, as she was. She was charged in federal court with conspiracy, securities fraud and other charges. As a secretary, she received a six figure salary and bonuses. As the judge said, she was not a “coldly, calculating, knowing participant” in the fraud, but rather “…a pampered, compliant and grossly overpaid clerical worker.” She “willfully blinded herself” to the illegal acts she was being told to carry out. As evidence that she was not a knowing participant, she preserved incriminating records for years that she might have destroyed, suggesting that she did not really understand the fraud.

But because this was a staggering $17 billion fraud, she faced life in prison. The prosecutors sought 20 years. However, a fair and thoughtful judge sentenced her to 6 years. While this is a far cry from what the prosecutors wanted, it’s still serous time. But as the judge stated, “She relied on Madoff’s blessing, rather than apply her own good sense and moral compass”.

Lesson Learned:

In federal court, it’s not a defense to claim you were just following orders and didn’t know what was going on, if a reasonable person would know or be able to figure out that crimes were being committed. I’ve represented business people who were routinely brought large sums of cash for the purchase of cars, boats, jewelry and the like who should have known that the cash was drug money and were charged accordingly. They all claimed not to have known the source of the money they were being paid with. They also thought (wrongly) that if they didn’t ask and weren’t told, they were committing no crime. They were wrong, because, like Ms. Bongiorno, they should have known better.

Is a plea agreement an enforceable contract?
Answer:

Yes, it is. Most criminal cases end in plea bargains. These plea agreements are contracts. Once signed, the obligations of the agreement must be honored. The accused agrees to plead guilty and give up certain rights, such as the right to appeal to a higher court. And the prosecutor agrees to a certain reduced sentence so that the accused knows what he getting. The judge, however, is not bound by this agreement and can reject it. What happens when the prosecutor argues to the judge that the agreed upon sentence is too lenient? This should never happen with a plea agreement, right? Unfortunately, as a Jacksonville criminal defense lawyer, I have seen prosecutors who have attempted to do this.

Take the case of U.S. v. Morales-Heredia, decided by the 9th. Circuit Court of Appeals on October 8, 2014. Mr. Morales plead guilty to illegally re-entering the United States from Mexico. He made the standard plea concessions: an early plea of guilt, no pre-trial motions and no right to appeal. The prosecutor promised a four level reduction in his sentencing guidelines. Both parties agreed not seek any variances or changes in the deal. But at the time of sentencing, the prosecutor wrote to the judge that Morales had a 20 year criminal history, including convictions for selling heroin and domestic violence. The prosecutor further wrote that Morales had “a consistent disregard for both the criminal and immigration laws of the United States” and that he “poses a danger to the community because his criminal history includes both drug trafficking and battery.” Obviously, this was unnecessary on the prosecutor’s part. Morales’ defense lawyer claimed (correctly) that the prosecutor had breached the plea agreement by failing to recommend the sentence that they had agreed to, in this case, 6 months in prison.

Not surprisingly, the judge rejected the plea agreement (after learning about Morales’ extensive criminal background), did not allow Morales to take his plea back (which the Judge should have done) and sentenced Morales to triple the agreed – upon sentence- 21 months. Morales appealed.

The higher court ruled that the prosecutor breached the plea agreement through its repeated and inflammatory references to Morales’s criminal history in it’s sentencing memorandum. The higher court enforced the literal terms of the promise and required the prosecutor’s strict compliance with it. Morales will end up getting the six month sentence he bargained for.

Lesson Learned:

It’s hard to believe that a prosecutor would agree to a particular sentence and then argue differently in a memorandum to a judge. It’s even harder to believe that a judge would be swayed by a prosecutor’s argument and then not do what it was supposed to do, that is, reject the plea agreement (if the court thought it too lenient) and allow the accused to take his plea back. This is an unfortunate example of not being able to trust a government prosecutor and government judge to do what they were duty bound to do. Fortunately for Morales, he had a good criminal lawyer who pointed out that a plea agreement is a contract and what the prosecutor did was a clear breach of that contract. Morales’s lawyer demanded specific performance (in this case, a six month sentence for his client) and will get it.

Can my silence at the time of my arrest be used against me at trial?
Answer:

No, silence at the time of arrest cannot be held against you. The courts have repeatedly held that prosecutors may not ask an accused about his post- arrest silence. Such questioning is a violation of one’s Fifth Amendment right to remain silent. And this makes perfect sense. The first and most important Miranda warning, as we all know from watching TV crime dramas and movies is “You have the right to remain silent”. So if an accused does remain silent, it follows that a prosecutor cannot ask that person on the witness stand, “Why did you remain silent when you were arrested and not tell the police what you are telling us now in court?” That prosecutors are not allowed to ask this question is one of the most basic rules of cross-examination. So it’s surprising how often they get it wrong and do ask this question. I have seen it happen first hand as a Jacksonville criminal defense lawyer.

Consider the case of U.S. v. Shannon, decided by the 3rd. Circuit Court of Appeals on September 8, 2014. The Pennsylvania State Police and the D.E.A., working with confidential informants, identified a cocaine distributor and were able to observe part of a delivery of cocaine. The police observed a man back his car up to a tractor-trailer rig , open his trunk and then hand a bag full of packaged cash to Mr. Shannon, who was standing beside the rig. The cops moved in a discovered a bag containing a large amount of cocaine in the man’s trunk. They also discovered over $700,000. in the bag given to Shannon, which he had placed in the cab of his truck, along with three different cell phones. Shannon, along with others, was charged with conspiracy to distribute and possess cocaine.

Shannon chose to go to trial. His defense was that he was simply caught in the wrong place at the wrong time. Shannon tried to explain that he needed three phones because one was his everyday phone, another was a work phone and yet another was used only to call his nephew. He further testified that he falsified his logbooks as a long-haul trucker in order to go visit his girlfriend. He even had an explanation for why he was associated with some of the drug dealers who were arrested along with him. The prosecutor then (foolishly) asked Shannon why he had not come forward earlier with these explanations when he was arrested. Even though Shannon’s criminal defense lawyer objected (good job!) the trial judge overruled the objection and made Shannon explain his earlier silence. Shannon was convicted by the jury and sentenced to 240 months in prison (that’s 20 years!). Shannon appealed his conviction.

The appeals court ruled that Shannon should not have been questioned about his post-arrest silence – it was a clear violation of his Fifth Amendment right to remain silent. It noted that it is fundamentally unfair to allow an arrested person’s silence to be used against him at a trial. Silence, the court wrote, should carry no penalty. As a result, the court set aside Shannon’s conviction.

h2.Lesson Learned:

How is it that a federal prosecutor could make such an obvious mistake? In their zeal to get convictions, they don’t always follow the rules. But how is it that a federal court judge could allow this type of questioning, even after the defense lawyer objected? It amazes me how often these types of mistakes and miscarriages of justice occur. Lucky for Mr. Shannon, he had a good criminal lawyer who knew the rules, objected right away and appealed his client’s conviction. Lawyers must be constantly on watch to make sure their client’s rights are not violated, before, during and after trial. Now, Mr. Shannon gets a new trial because the prosecutors just couldn’t help themselves and went too far.

Will a prosecutor’s misstatement of facts at trial cause a reversal of a conviction?
Answer:

Yes, it probably will. Although closing arguments during a trial are a time of persuasion, a prosecutor cannot misstate facts and encourage a jury to convict you on the basis of evidence not presented at trial. I have seen this happen as a Jacksonville criminal attorney. One would think that a prosecutor would never do such a thing, but this is exactly what happened in the case of U.S. v. Mageno. Nancy Mageno’s godson, a leader of a methamphetamine conspiracy, did not speak English fluently, so Mageno translated telephone calls for him. As a result, Mageno was prosecuted for knowingly joining and participating in the drug conspiracy by fostering communication between its participants and her godson.

At Mageno’s trial, the prosecutors introduced five intercepted phone calls in which Mageno acted as a translator. Things like the quality of the drugs, shipment times, meetings, price and the like were translated. Testifying in her own defense, Mageno maintained that she did not know the conversations were about drugs, but thought they were about her godson’s jobs as a day laborer and the quality of his work.

During closing arguments (in federal court, the prosecutors get to go first and then, after the defense lawyer, they get to go again) the prosecutors argued that Mageno knew that her godson had been deported for drug trafficking, and so must have known the calls she translated related to drug trafficking. But there was no testimony that Mageno knew that her godson had been deported or why. This line of argument was repeated by the prosecutors several times in both of their summations. Incredibly, Mageno’s defense lawyer did not object to theses misstatements of fact by the prosecutor.

A jury convicted Mageno and the court sentenced her to 87 months in prison.

The Court of Appeals for the Ninth Circuit reversed Mageno’s conviction. The Court ruled that there was “plain error” involving prosecutorial conduct and that “the error seriously affects the fairness, integrity or public reputation of the judicial proceedings”. The Court went on to note that “criminal defendants have a constitutional right not to be convicted except on the basis of evidence adduced at trial” and that prosecutors may make reasonable inferences from the evidence presented, but “have an affirmative obligation to avoid making statements of fact not supported by proper evidence”. In this instance, the Court noted that the prosecutors “misstated important evidence and did so repeatedly”. As a result, the improper conduct tainted the verdict and deprived her of a fair trial.

Lesson Learned:

First off, it’s a really bad idea to translate drug deals for other people. You will be indicted, just like Ms. Mageno, who got 87 months (that’s more than 5 years!) just for acting as a translator. And clearly, the jury did not believe that she didn’t know what was going on. But lucky for her, the prosecutors got carried away and misstated the facts during their closing arguments. Mageno’s lawyer should have objected when this happened-usually, if your lawyer doesn’t object, the issue is waived. But here, a wise appeals court realized that Mageno’s rights were so violated that a new trial was in order. While courts often tell jurors that closing arguments are not evidence, the arguments made are powerful in their ability to convince. Maybe Ms. Mageno will get lucky the second time around and a new jury will acquit her.

Can a judge make comments during a trial that favors the prosecutor?
Answer:

No, he cannot. United States v. Rivera Rodriguez, decided by the 1st. Circuit Court of Appeals on August 4, 2014, is a good example of what happens when judges decide to get into the action of questioning witnesses on their own. I have witnessed this myself as a Jacksonville criminal lawyer. Carlos Rivera Rodriguez was convicted of drug possession and distribution charges. He appealed his conviction, claiming that the judge improperly questioned the witnesses against him and further made an unfair comment during the prosecutor’s summation. Rivera-Rodriguez and Mr. Mercado-Cruz were among sixty four co-defendants charged with involvement in a conspiracy to distribute various types of illegal drugs. They were the only two who elected to stand trial rather than accept plea agreements.

The main witnesses against Rivera-Rodriguez were two informants (or as the government calls them, cooperating witnesses) who had already plead guilty. During the questioning of those witnesses by the prosecutor, the judge (in order to move things along) asked its own questions about the plea agreement each had signed with the prosecutors. Specifically, the judge hammered home the point that the witnesses were required to testify truthfully and if they did not (as the court emphasized through its questioning) there could be consequences for the witnesses, including charges for perjury, false statements and obstruction of justice, as well as the imposition of sentences beyond the terms of the plea agreements. The judge then clarified for the prosecutors, through another witness, the proximity of lookouts to Rivera-Rodriguez’s home, when the witness was having trouble marking the location of the home on an exhibit. Finally, during the prosecutors closing argument, he characterized Rivera-Rodriguez’s testimony as inconsistent with that of his own witness. The defense lawyer objected; the judge not only overruled the objection, but added, on his own, "that’s exactly what he said’, in essence, making the prosecutor’s argument for him.

Rivera-Rodriguez’s defense lawyer objected to the judge’s questioning of the witnesses and the judge’s comment during the prosecutor’s final argument, which were the correct objections to make. When judges start questioning witnesses and making comments, it gives the questions and answers(and comments) more validity in the jurors eyes. What’s worse, it makes the judge appear impartial, as though he’s favoring one particular side over the other.

The jury found Rivera-Rodriguez guilty on all counts; the judge sentenced him to 120 months (ten years) imprisonment.

Rivera-Rodriguez appealed his conviction and the appeals court sided with Rivera-Rodriguez, noting that “the court must scrupulously avoid any appearance of partiality.” Here, the trial judge appeared to favor the prosecutor’s view of the case. Also, the appeals court found that the trial judge became "frustrated’ with the prosecutor’s questioning and thus intervened, taking over the prosecutor’s role. “In short, the court’s question[ing] was a much more effective way to accomplish what the prosecutor was trying to accomplish, and it added to the overall sense that the judge was helping the government make its case”. The jury cannot perceive the court as biased towards one party or another, but that’s exactly what happened here. The “trial court overstepped its bounds” and gave the "appearance of judicial bias. " As a result, Rivera-Rodriguez’s conviction was overturned and a new trial was ordered.

Lesson Learned:

This is my third article on defendants who have won new trials because of very obvious mistakes that trial judges have made. Whether in the name of speed, efficiency, moving things along or the like, many judges just can’t seem to follow the basic rules of fairness. In this instance, the trial judge was frustrated with a bungling prosecutor who couldn’t seem to ask the simple questions of several witnesses. So the judge decided to do it himself. Is this fair? Of course not. I’ve never read an opinion where a judge decided to help out an inept defense lawyer. This was a good decision. Hopefully, trial judges will start to learn that they are not advocates in the courtroom, but more like umpires, who are there to make sure things are done fairly and the rules are followed. They are not there to help prosecutors win convictions.

Can a judge prevent a lawyer from questioning potential jurors about media coverage?
Answer:

No, he cannot, thanks to Dippolito v. Florida, decided July 30, 2014. As a Jacksonville criminal defense attorney, I have often had to fight judges about letting me question potential jurors about their exposure to media coverage. In 2011, Dalia Dippolito was convicted in a murder for hire scheme in Boynton Beach, Florida. The jury found Dippolito guilty of paying a Boynton Beach undercover cop, posing as a hit man, $3,000. to kill her then spouse Michael Dippolito. A video of police officers approaching Dippolito at a staged murder scene in August of 2009 went viral and was viewed hundreds of thousands of times on YouTube. It was played at her trial and helped persuade the jury to convict her. The incident got a great deal of press coverage, both nationally and internationally. And because of the great media hype, Dippolito’s lawyers wanted the trial judge to let them question potential jurors individually about their awareness of her case, what they had read or heard and whether or not they (the potential jurors) had been influenced one way or the other. Sounds like a reasonable request, right? After all, the jury selection process (known as voir dire) is crucial. It’s a process that allows both the prosecution and defense to question potential jurors about their individual biases in the hopes of weeding out those jurors who cannot be fair and impartial. But a Palm Beach County Judge refused to allow it. The 4th District Court of Appeal said that was a mistake as it denied the defendant a fair trial. As a result, the higher court has overturned (thrown out) Dippolito’s conviction and 20 year prison sentence. She has been released from jail, put under house arrest and $500,000. bail. “She wasn’t provided a fair trial from day one”, her lawyer said. At the start of jury selection, Dippolito’s lawyers asked the prospective jurors if they had heard about the case. 28 of the 54 prospective jurors raised their hands. At this point, her lawyers were concerned that the entire jury pool could be contaminated if one juror mentioned something prejudicial in front of the others. But the Judge asked a sweeping question of all the jurors collectively (as they always do) and concluded that all the jurors could be fair and that none “held any strongly held opinions on the merits of the case.” When Dippolito’s lawyers questioned the prospective jurors about their knowledge of the case, one juror mentioned a report that Dippolito “had tried to poison her husband with antifreeze”. The higher court, in overturning her conviction, wrote that Dippolito’s lawyers “had the right to ask these jurors what specific information they had learned from the media; the jurors’ show of hands was insufficient to protect her right to a fair and impartial jury.”

Lesson Learned:

In my opinion (which I have formed over many years of trying criminal cases) Judges often rush criminal cases. They view defense lawyers as obstructions in the courtroom, trying to delay the proceedings at every turn. But good defense lawyers must protect the interests of their clients at all times. That’s exactly what they were doing here. The defense lawyers were right and the Judge was wrong. In fact, the Judge was so wrong (I’m sure in his quest to ’ move things along’ ) that now, the entire trial must be done again. Rather than taking an hour (at most) to question the 28 jurors individually about what they had heard or read and whether it had any impact on them, the Judge chose (as they often do) to speed things up and ‘not waste time’. Which I’ve always found odd, because Judges are paid the same whether they preside over trials or not. So now, this Judge must spend hundreds of additional hours and tens of thousands more in taxpayer money to try a case all over again. My compliments to Ms. Dippolito’s defense lawyers who pressed the issue, protected their client and refused to give up.

Can a prosecutor appeal a sentence of probation in federal court?
Answer:

Yes a prosecutor can appeal a sentence of probation in federal court. As a Jacksonville criminal attorney, I can say it doesn’t often happen, but the case of U.S. v. Hayes, decided by the 11th. Circuit Court of Appeals, on August 12, 2014, is an example of when it can happen and why. Mr. Hayes is a 67 year old businessman who- over a period of four years- doled out over $600,000. in bribes to a state official in order to ensure that his company would continue to receive government contracts. Hayes’ company reaped over five million dollars in profits as a result of the corrupt payments. Hayes ran a computer software company. He bribed Roy Johnson, the chancellor of the education department, to have school contracts awarded to Hayes’ company for computer software services.

Government investigators started looking into the awarding of the school software contracts and subpoenaed Hayes’ bank records. Hayes immediately got a lawyer (a smart move) and began cooperating with the government (a questionable move). Hayes became an informant and personally tape recorded several targets of the investigation. Hayes was eventually charged with bribery and money laundering. He also consented to a criminal forfeiture of all his ill gotten gains.

According to the Sentencing Guidelines (which are now advisory, not mandatory) Hayes was facing a range of 135 to 168 months imprisonment. However, because Hayes cooperated with the government, he got a 5K1 letter, which allows the court to depart downward .(see my blog post titled “Should I cooperate with the government and inform on my co-defendants…”, dated June 21, 2014). The government recommended a reduced range of 57 to 71 months, with a recommendation of 60 months. The court next considered the 3553(a) factors. Hayes lawyer requested a further downward variance to a sentence of probation based on a number of 3553(a) factors including his culpability, his otherwise law abiding life, his age and deteriorating physical health and his not posing a risk to society. The government held fast that 60 months imprisonment was appropriate because Hayes’ crimes were serious and involved the corruption of high-ranking public officials, obstructive behavior and significant amounts of state funds. The government also argued that others needed to be deterred from engaging in similar conduct. The district court was swayed by Hayes’ arguments and sentenced him to three years’ probation, $628,454.28 in restitution and forfeiture of his $5 million profit.

The government appealed the sentence and the higher court, in this instance, agreed with the government prosecutors that the sentence meted out to Hayes was too light. It noted " that white-collar offenses need to be deterred, and that prison sentences are probably the best deterrent for those who might think about engaging in similar conduct". After all, the court noted that Johnson, the school chancellor, also cooperated with the government, but ended up with a 78 month prison term, not probation. Now, Mr. Hayes will have to return to federal court where he will be sentenced to some term of imprisonment.

Lesson Learned:

Hayes’ lawyer did a great job in getting Hayes initially sentenced to probation. While appellate courts usually don’t overturn or upset sentences, they did here because the appeals court found that the sentence given Hayes was unreasonable. Most white collar criminals cooperate with the government and expect better treatment than those charged with violent crimes. Those days are over. Lately, the courts have been treating white-collar criminals much more harshly. What with the mortgage and loan scandal that required Government bailouts and caused the collapse of Bear Stearns and Lehman Brothers, insider trading cases and other massive frauds, white-collar criminals should not expect to be able to buy their way out jail, which is surely what the higher court thought had happened here.

And as I have written before, cooperating with government prosecutors is not all it’s cracked up to be. After all, Hayes informed on his co-defendants, helped make cases against them, paid a big fine and agreed to forfeit millions of dollars. The government still wasn’t satisfied and appealed, demanding Hayes serve jail time, which he now will. In retrospect, if Hayes, Johnson and the others stood tough and forced the government to trial, they may have gotten a better outcome. In the words of statesman Benjamin Franklin “We must all hang together or assuredly, we shall all hang separately”.

Does my lawyer need to be present in the courtroom for my entire trial?
Answer:

Yes, your lawyer needs to be present, as the 11th. Circuit Court of Appeals decided in U.S. v. Roy, on August 5, 2014. As a Jacksonville criminal defense lawyer, I would never be absent for any part of a trial. But Mr. Roy’s criminal defense attorney was temporarily absent from the courtroom when testimony was admitted into evidence, contributing to his conviction. As a result, Roy claimed that his conviction was obtained in violation of his Sixth Amendment right to counsel. He argued that a new trial is required because his counsel was absent during a “critical stage” of his case. Apparently, the afternoon session of Roy’s trial began when his lawyer was not in the courtroom and during this time, evidence directly inculpating Roy was presented to the jury.

Roy responded to an ad on Craigslist supposedly soliciting sex for two women. The ad was phony, having been placed by cops in a reverse sting operation, who were hoping to ensnare someone who expressed an interest in having sex with an underage girl. Roy responded to the ad. The police arranged a meeting at a Waffle House restaurant in Kissimmee, Florida. Roy drove to the restaurant and entered the parking lot, but then drove away without ever parking his vehicle. He was nonetheless pulled over and arrested. His home was searched and child pornography was found on his computer. He was indicted by a federal grand jury on one count of attempting to entice a minor to engage in sexual activity and four counts of possession of child pornography.

During a portion of Roy’s jury trial, his lawyer was absent from the courtroom immediately following a lunchtime recess. Prior to the recess, the judge had said that the trial would re-commence at 1:30 pm. Instead, it started at 1:29 pm without defense counsel present; counsel did not make it back into the courtroom until 1:36 pm. During the lawyer’s absence, the government offered testimony from its computer forensics expert witness. The direct examination of the witness continued after the lawyer arrived. The jury found Roy guilty and he was sentenced to life imprisonment.

The 11th. Circuit Court of Appeals reversed Roy’s conviction and ordered a new trial because Roy was denied counsel during a critical stage of his trial. His lawyer was not present to hear all the questions being asked of the expert witness, nor could not object to the questions being asked. Luckily for Roy, he gets a second bite at the apple.

Lesson Learned:

Roy’s lawyer’s failure to come back to court on time won Roy a new trial. The trial judge apparently just couldn’t wait for Roy’s lawyer to return from lunch, who was six or seven minutes late. During that time a whole eight questions were asked by the prosecutor of the expert witness. Now, the entire trial must be done over, thanks to an impatient judge. But why in the world would a federal court judge (or any judge for that matter) re-commence a trial without the defendant’s lawyer being present? Don’t these judges know the error they are committing?

I have been late to court before. It happens. I have even been yelled at for being late by judges who, without fail, want to move the proceeding along. This has happened to every trial lawyer I know. But I have never had a judge start a trial or re-commence a trial without me. What judge in his right mind would actually re-commence a trial without the defense lawyer being present? What’s more, what prosecutor would start questioning a witness without the defense lawyer being present? Was this done to punish or embarrass the lawyer? Was the judge trying to send a message to the tardy lawyer? Probably. Couldn’t the judge have waited the few extra minutes it took for the lawyer to return from lunch? There is no explanation in the decision as to why the trial judge didn’t wait, nor was the judge chastised by the higher court (as he should have been) for not waiting for the defense lawyer to return to the courtroom. Whatever the reason, this peculiar move by the trial judge means a great big break for Mr.Roy, who now gets a new trial.

Can I get my charges dismissed based on outrageous government conduct?
Answer:

Yes, it’s possible, to get your charges dismissed, especially if you’re in federal court. Reverse sting operations are all the rage these days (think police posing as underage girls on- line in order to get people to agree to meet with them for sex). The police are always coming up with ingenious ways to ensnare people who normally wouldn’t be inclined to commit crimes. Of course, sometimes they go too far. As a Jacksonville criminal attorney, I have witnessed the various police agencies engage in what I believed to be outrageous government conduct.

In the case of U.S. v. Hudson, a federal judge in California recently dismissed an indictment against three individuals who were induced by ATF agents to engage in a home invasion robbery of a fake drug stash house. The tale is almost to much to believe. An ATF agent, along with an LAPD cop and a confidential informant painted a picture of a poorly guarded stash house that contained 20 to 25 kilos of pure cocaine. The entire story was a lie and the stash house nonexistent. The agent set up the robbery and convinced the three defendants to participate. The agent asked one of the defendants to supply some guns for the job, which he did. The ATF agent then had all three defendants meet him at a “safe house” before committing the robbery. The defendants met the agent there, were promptly arrested and later charged with conspiracy to possess cocaine with intent to distribute and using or possessing a firearm in furtherance of a drug trafficking crime, along with other crimes. The defendant’s lawyers moved to dismiss the indictment due to outrageous government conduct. Good idea!

The court granted the motion and dismissed the indictment. In a great opinion, the court wrote that “The outrageous -government-conduct doctrine permits a court to dismiss an indictment when the Government engages in conduct so grossly shocking and so outrageous as to violate the universal sense of justice”. The court will focus on the actions of the government and not the actions of the defendant. In this way, it differs from (and is better) than an entrapment defense.

The court must consider a number of factors, including (1) the known criminal characteristics of the defendants; (2) the individualized suspicion of the defendants; (3) the government’s role in creating the crime of conviction; (4) the government’s encouragement of the defendants to commit the offense conduct; (5) the nature of the government’s participation in the offense conduct and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue.

What does all this mean? In this case, it means “…the Court finds that the Government’s extensive involvement in dreaming up this fanciful scheme-including the arbitrary amount of drugs and illusory need for weapons and extra associates-transcends the bounds of due process and renders the Government’s actions outrageous.”

Lesson Learned:

It’s one thing to infiltrate a criminal organization; it’s quite another to invent a criminal scheme out of whole cloth. This one just didn’t smell right and went too far. As the court wrote, “The United States Supreme Court has drawn a line between infiltrating an ongoing criminal enterprise on one hand and manufacturing crime on the other”. It noted, “But for the undercover agent’s imagination in this case there would be no crime”. In my opinion, this can be said for many reverse-sting operations. Unsuspecting individuals are preyed upon by cops and ensnared into schemes they would never have engaged in, but for the government’s conduct. So if you find yourself caught in one of these government-created fake crimes, give me a call.

Are expert witnesses really necessary?
Answer:

You bet they are. Jurors love expert testimony and expert witnesses. As a Jacksonville criminal defense lawyer, I always try and put an expert witness on the stand. Why? Because the prosecutor will almost always try and put expert testimony before a jury; it often fills the cracks in an otherwise weak or questionable case. Expert testimony helps to secure convictions. The only problem is, sometimes the science behind the expert testimony turns out to be unreliable or false.

Take the case of arson. Dozens of arson prosecutions have come under scrutiny lately because of entrenched but now discredited beliefs about how arson can be detected. The Arson Research Project has highlighted at least 31 wrongful convictions based on now debunked fire investigations, including, most notably (and chillingly) the conviction and execution of Cameron Todd Willingham in Texas, an innocent man.

Or take the case of Han Tak Lee, a South Korean immigrant convicted of first degree murder and sentenced to life without parole when he supposedly set fire to a Pennsylvania cabin in which his daughter was killed. The arson science and expert testimony turned out to be flawed and wrong. Now, after having served nearly 25 years in prison, a federal magistrate recommended that Lee should either be given a new trial or released from prison outright. “There was just no science behind the old assumptions about arson”, said Paul Cates of The Innocence Project. “A lot of this was just guesswork and voodoo”. Lee, now 79 years old, has consistently maintained his innocence.

At the time, arson investigators were taught that unusually hot and intense fires indicated the use of an accelerant and that arson could be confirmed by the presence of deep charring or shiny blistering of wood as well as "crazy glass’, tiny fractures in windows. Fire research conducted in the 1980’s debunked these and other notions about arson. By 1992, the National Fire Protection Association had published new standards to guide fire investigations. But arson investigators, many of whom testify as “experts” at criminal trials for the government, were slow to accept the new science. 25 years later, U.S. Magistrate Judge Martin Carlson said scientific progress had invalidated the conviction of Mr. Lee. “Over the past two decades, there has been a revolution in fire science”, he wrote. “It is a revolution that has toppled old orthodoxies and cast into doubt longstanding assumptions regarding fire science analysis”.

How could these so-called experts continue to testify the way they always had ? Because old way die hard and old experts, set in their ways, don’t want to admit they were wrong. There are experts in just about every field and on just about every subject. Some are qualified in known subjects like ballistics and fingerprints. Some are highly questionable, like psychiatrists that have been permitted to testify in some rape trials about the field of ‘repressed memories’ by victims. Is there any way to prevent the prosecutor from calling some of these ‘experts’ to the witness stand?

Yes, there is. Request a Daubert hearing in front of the trial judge, which is a hearing to evaluate the admissibility of an expert’s testimony. It is a hearing held out of the jury’s presence and before the trial even begins. The trial judge will make a determination of whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue. The judge must determine whether (1) the theory can be and has been tested, (2) whether it has been subjected to peer review and publication, (3) it’s known or potential error rate, (4) the existence and maintenance of standards controlling its operation and (5) whether it has attracted widespread acceptance within a relevant scientific community.

Lesson Learned:

Even with a Daubert hearing, the decision to allow certain types of expert testimony is still somewhat subjective and up to trial judge, who may be right or may be wrong. It’s best, if you can afford it, to be able to counter the government expert with your own expert, so that the jury will have more than just the government’s expert point of view to consider.

Will a Judge punish me for exercising my right to go to trial?
Answer:

Yes, they will, although judges rarely admit it. As a Jacksonville criminal attorney,I have seen this happen with regularity. One of the toughest decisions a client faces is whether to take a case to trial or accept the government’s plea offer. Most criminal cases end with an agreed upon disposition, otherwise known as a plea bargain. In federal court, more than 90 percent of criminal cases are disposed of with a plea. Plea bargaining has become such an intregal part of the criminal justice system that the courts, judges, prosecutors and defense lawyers expect this as a probable outcome. And when it doesn’t happen, some judges feel that their time is being unnecessarily taken up or wasted if they have to preside over a trial (even though this is what they are paid to do).

All criminal defense lawyers have experienced a judge’s covert and sometimes overt warning that things will be much better for their client if they accept the government’s plea offer. Many judge’s feel that trials are a waste of taxpayers money or judicial resources. Unfortunalely, judges also have bosses that review how many cases they have disposed of during a calendar year. A plea bargain takes much less of the court’s time than having to select a jury, have witnesses called, make rulings, draft jury instructions and the like.

In Herman v. State of Florida, a trial judge in Orange County, Florida imposed a one thousand dollar fine on a defendant because he exercised his right to begin a trial. Herman was charged with attempted second degree murder, aggravated battery with a firearm and possession of a firearm by a convicted felon. Midway through his jury trial, Herman decided to accept a plea offer from the State. The State agreed to dismiss the attempted murder charge if Herman would plead no contest to the other two counts and accepted a prison sentence. When Herman accepted the plea bargain, the trial judge, on his own, stated:

“I’ll fine him a thousand dollars. I’ll refer that to collections court. I usually fine people who go to trial. And the reason for that is it’s punitory [sic]. He’s taking up public resource, he needs to pay. He can pay when he gets out of prison at a rate of $50 a month through collections court.”

Herman appealed the fine and the Florida Appellate Court agreed with him, stating “…a trial court may not impose a fine simply because the defendant exercised his or her right to a trial. [A]ny judicially imposed penalty which needlessly…deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.” Wilson v. State (citation omitted), Walek v. State (citation omitted).

Lesson Learned:

While most Judges are hardworking and professional, many also harbor the sentiments of the trial judge in the Herman case. However, they would never reveal these sentiments. I was seated in the audience in a Jacksonville courtroom recently and observed a sentencing hearing before a judge I admire and respect. During the hearing, the prosecutor mentioned that the defendant had been made a plea offer of 10 years prior to trial. The defendant decided to exercise his Constitutional right to a jury trial. A jury convicted him. The judge asked defense counsel if , in fact, the defendant had been made a 10 year offer by the State before trial. The defense lawyer confirmed that he had. The judge sentenced the defendant to 15 years in prison. Did the court punish the defendant for deciding to put the State to it’s proof and go to trial rather than accepting a plea bargain? You be the judge. The Law Office of Richard Landes can help you decide whether to plea bargain or go to trial in the Jacksonville, St. Johns, Clay and Nassau County areas. Call 904-343-4556 for a free, no obligation phone consultation.