Vol. 4, No. 20 As Published in the Advance Sheets on May 19, 1997 Copyright © 1997
Highlights of this Issue:
United States v. Hyde, U.S. Supreme Court, May 27, 1997 (Docket No. 96-667)
Last week the Supreme Court focused its attention on the circumstances under which a defendant is permitted to withdraw a guilty plea. That question is complicated by the generally accepted principle that plea agreements are to be treated like normal commercial contracts (which would imply that they are not binding until accepted by both parties); and by the interaction of two different provisions of the law. Rule 32(e) of the Fed.R.Crim.P. states that, before sentencing, a defendant is permitted to withdraw his plea "for any fair or just reason." On the other hand, U.S.S.G. § 6B1.1(c) states that "[t]he court shall defer its decision to accept or reject [the recommendations contained in the plea agreement] until there has been an opportunity to consider the presentence report . . .".
In considering those provisions, the Ninth Circuit had held (in U.S. v. Hyde, 92 F.3d 779 (9th Cir. 1996)) that if the sentencing court does defer acceptance of the plea or the plea agreement, "the defendant may withdraw his plea for any reason or for no reason, until the time that the court does accept both the plea and the agreement." That result terrified the Government because it opened up the possibility that many defendants might decide to reject their plea agreements after they had a chance to reconsider the wisdom of their actions. Thus, it argued that, in the case at bar, the district court had accepted the guilty plea, even if it had not accepted the plea agreement. The Ninth Circuit called that argument "a distinction without a difference"; and reasoned that the plea agreement and the guilty plea "are inextricably bound up together."
The Supreme Court, in a unanimous decision, caustically rejected the Ninth Circuit's approach, stating that it "would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess." Thus, it insisted that a defendant should not get a second chance to rethink his plea agreement; and it held that any withdrawal of a guilty plea prior to sentencing will only be permitted on a showing of "a fair and just reason" as Rule 32(e) requires.
United States v. LaBonte, U.S. Supreme Court, May 27, 1997 (Docket No. 95-1726)
Setting the stage for this decision, Justice Breyer aptly observed in his dissent that "the list of relevant sentencing factors is long, and their interaction impossibly complex." This case deals with one of those "impossibly complex" amendments to the Guidelines - Amendment No. 509 - which attempted to define the appropriate sentence under U.S.S.G. § 4B1.1 for "career offenders" (i.e., defendants who have at least two prior felony convictions for a crime of violence or a drug crime).
Ever since the Sentencing Commission issued Amendment No. 509, the Circuit Courts have engaged in a bitter and often truculent debate about what Congress meant when it directed the Sentencing Commission to make sure that Career Offenders would be sentenced "at or near the maximum term authorized" by Congress. At issue was the weighty question whether the appropriate penalty under § 4B1.1 should be determined by including or by precluding any statutory enhancements triggered by prior convictions. In adopting Amendment No. 506, the Commission took the rare step of somewhat moderating the penalties imposed on career offenders by ruling that their new sentences should not include any prior sentencing enhancements. In practical terms, that decision had the effect of reducing the sentences of some career offenders from the giddy heights of 30 years to life to "only" 25 to 30 years. The mistake the Commission made was that it stated it was attempting to avoid "unwarranted double-counting as well as unwarranted disparity associated with variations in the exercise of prosecutorial discretion in seeking enhanced penalties based on prior convictions."
Prosecutors don't like restrictions on their prosecutorial discretion - so the issue became a major cause célèbre in the courts. The First and the Ninth Circuits sided with the Commission and ruled that Amendment No. 509 was entitled to deference; but five other Circuits disagreed and ruled that the Commission had exceeded its statutory authority. The Supreme Court has now ruled that in imposing the new sentence "it is not sufficient merely to identify the basic penalty associated with that offense." Instead, it opted for the harshest penalty possible; and ruled that Amendment 509 was an improper and invalid interpretation of the law.
United States v. Paul, 110 F.3d 869 (2nd Cir. 1997) (Judge Newman)
The defendant is this case was playing poker in a bar one night when he was approached by a stranger who asked to borrow $100. When the defendant refused, the stranger pulled a gun out of his pocket and fired two shots at the defendant's legs. Both shots missed. Ultimately the defendant tackled the stranger and pinned him to the ground. When the stranger again attempted to use his gun, the defendant seized the gun, fired the remaining shots into the ground and then threw the empty gun on the barroom floor. For his act of self-defense, the defendant, an ex-con, was charged with possession of a gun as a felon, in violation of 18 U.S.C. § 922(g).
At his trial, the defendant argued that he had fired the gun solely to ensure that it could no longer be used to injure or threaten him. Nevertheless, District Judge Daly refused to allow the defendant to present a defense of duress to the jury; and he was convicted. On appeal, saner heads prevailed; and the conviction was reversed. The Court concluded that the jury was entitled to hear the facts that led to the fleeting possession of the gun. It explained that duress is a legal excuse for criminal conduct if, "at the time the conduct occurred, the defendant was subject to actual or threatened force of such a nature as to induce a well-founded fear of impending death or serious bodily harm from which there was no reasonable opportunity to escape other than by engaging in the unlawful activity." (Id., at 871). The Court also noted that "[u]pon a proper request, a defendant is entitled to a jury instruction on any defense theory for which there is a foundation in the evidence . . ., even if the trial court determines that the evidentiary foundation of the defense theory is only tenuous." (Id.). O.K, he's an ex-con; but why do they even bother prosecuting such ridiculous cases?
United States v. Workman, 110 F.3d 915 (2nd Cir. 1997) (Judge Leval)
Collecting fines has become an increasingly important role for the Department of Justice, because it relies heavily of such payments to meet its constantly rising budgets. Thus, it has always sought maximum flexibility to collect the last dime from every felon. In this case, the defendant was sentenced to 96 months in prison; and he was ordered to pay $1,000 while in prison "on a schedule to be fixed by the Bureau of Prisons." The Second Circuit had previously ruled, in U.S. v. Kassar, 47 F.3d 562 (2nd Cir. 1995), that a sentencing judge may not delegate to the Probation Office the task of setting schedules for the payment of fines; but the Government didn't like that decision so it tried again to persuade the Court that it is proper to delegate the collection of fines to the probation office and the Bureau of Prisons. This time it pointed to an obscure portion of the legislative history, contained in a House Report dealing with the Criminal Fine Improvements Act of 1987, which explained that the new provisions of 18 U.S.C. § 3572(d) would "eliminate[ ] the . . . requirement that the specific terms of an installment schedule be fixed by the court. The court is thus able to delegate the responsibility for setting specific terms to the probation officer." The Court rejected that argument. While it acknowledged that the legislative history cited by the Government "suggests that Congress may have intended to allow some delegation, the plain language of § 3572(d) precludes delegation . . . [and] indeed, it appears to contradict it." The portion of the sentence dealing with fine was vacated and the case (which obviously cost far more to appeal than the $1,000 at issue) was remanded back to the district court.
Wilson v. Layne, 110 F.3d 1071 (4th Cir. 1997) (Judge Wilkins)
One of the concomitant parts of making arrests in America has become the sick tradition that arrests afford law enforcement agents a unique opportunity to exhibit their uncommon valor before cameras for replay on T.V. news shows. In one noted case, Judge Weinstein bluntly called such shameful acts of bravado nothing more than blatant attempts "to titillate and entertain others" Ayeni v. CBS, Inc., 848 F.Supp. 362, 368 (E.D.N.Y. 1994).
In this case, a SWAT team of Federal and State law enforcement officials engaged in a pre-dawn raid on a home, seeking to apprehend a 27-year old fugitive who was clean-shaved and weighed some 185 pounds. The SWAT team was accompanied by two newspaper reporters, outfitted with cameras, "to observe and chronicle the execution of the warrant." The Court acknowledged that their presence "was not designed to serve any legitimate law enforcement purpose." (Id., at 1072). Upon entering the home, the officers encountered 47 year-old Charles Wilson (the father of the alleged fugitive), who weighed some 220 pounds and wore a beard, and who was dressed only in his underwear. Angry at the pre-dawn intrusion, he protested. He was quickly subdued and thrown on the floor. Then Wilson's wife, wearing only a sheer nightgown, emerged from her bedroom and she too was quickly placed in custody. "Throughout these events, the reporters observed and photographed what transpired."
When it became apparent that the officers had the wrong people, they left. The Wilson's ultimately sued for damages, asserting that their Constitutional rights had been violated in three ways: (1) the officers had used excessive force in executing the arrest warrant; (2) they lacked probable cause to believe that the alleged fugitive would be found in their home; and (3) they improperly permitted representatives of the media to observe and photograph the execution of the arrest warrant. The district court found that the execution of the arrest warrant was unconstitutional, but it also found the officers were entitled to qualified immunity for their acts in executing that warrant. However, the court also determined that the officers were not entitled to qualified immunity for allowing the press to accompany them into a private residence during the execution of the arrest warrant.
On appeal, the Fourth Circuit reversed. In its ruling, it declined to determine whether the officers' conduct was constitutional or appropriate, and decided to resolve the issue on narrower grounds: "Because in April 1992 it was not clearly established that permitting media representatives to accompany law enforcement officers into a private residence to observe and photograph their attempt to execute a warrant would violate the homeowner's constitutional rights, we hold that these officers are entitled to qualified immunity." (Id., at 1076). Judge Russell disagreed. In his dissent he wrote: "I believe the officers acted unreasonably in this case, first by allowing the reporters into the home, and then by permitting them to take photographs of Mr. Wilson face down on the floor in his undershorts , and Mrs. Wilson in her sheer nightgown. I agree with the Second Circuit's analysis that Fourth Amendment jurisprudence long ago clearly established that police may not invite reporters into private homes when they are executing warrants if those reporters are neither 'expressly nor impliedly authorized to be there." Ayeni v. Mottola, 35 F.3d 680, 686 (2nd Cir. 1994).
Carter v. Johnson, 110 F.3d 1098 (5th Cir. 1997) (Judge Smith)
Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Judge Seymour)
Both of these cases deal with the issue of competency to stand trial - albeit from very different perspectives. One of the many issues raised in the Carter case was a contention by the appellant that the lower courts had erred by failing to conduct a nunc pro tunc evidentiary hearing to determine his competency. That contention was rejected by the Fifth Circuit. It reviewed, at least in general terms, the constitutional standard for competency, which it expressed as "whether the defendant 'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as a factual understanding of the proceedings against him'." (Id., at 1105). It also concluded that a defendant is not entitled to an evidentiary hearing on the issue of his competency unless "he makes a showing by clear and convincing evidence to raise threshold doubt about his competency." (Id., at 1106).
That discussion helps understand the extraordinary facts described in the Williamson case. In that horrific case, the appellant was convicted of a murder that occurred in 1982. Although he was deemed to be a suspect in the murder, no charges were filed against him until May of 1987 (some five years later), apparently in large part because a state fingerprint expert concluded that prints found at the scene of the crime did not match those of either the victim or the appellant. In May of 1987, the victim's body was exhumed and another set of her fingerprints were allegedly obtained, which caused the same state examiner suddenly to reverse his earlier opinion and conclude that the new prints did indeed match those of the victim. (The decision does not explain why finding prints of the victim in her own apartment led to the conclusion that the appellant was the murderer - but he was promptly arrested, charged with, and convicted of the deed.)
At his trial, the appellant was represented by appointed counsel, a sole practitioner who was blind. That counsel totally failed to investigate the appellant's extensive background and history of mental illnesses. He had been hospitalized for mental illness in 1979 - and again in 1981 - and again in 1983 - and again in 1985. The same counsel also ignored a letter written by a social worker who pleaded that the appellant needed "a complete neurological evaluation and observation by experienced professionals"; and he relied exclusively on the opinion of one doctor who said that the appellant was competent to stand trial - an opinion that itself was suspect both because that doctor was himself "suffering from severe untreated bipolar disorder" and because his opinion as to the appellant's competency "was provided two years before the period with which we are concerned."
In the end, the Court concluded that the attorney was totally ineffective in failing to investigate his client's well-documented history of mental illness and in failing to seek a competency determination; and it reversed the conviction, noting that "the criminal trial of an incompetent defendant violates due process." (As if the Court needed more, it also concluded that the same lawyer had also failed to represent his client adequately by ignoring extensive tangible evidence that another man had confessed to the crime. When questioned by the Court why he failed to use that evidence, the counsel made the astonishing admission that "I cannot remember why I did not do so.")
An interesting sidelight of the case is that the appellant's counsel was paid the statutory maximum, the munificent sum of $3,200 for his services; and he did not receive any investigative or expert services. With words that may come back to haunt it, the Court sharply criticized the State of Oklahoma for paying so little to appointed counsel. It wrote: "These factors make it economically unattractive, if not impossible in many circumstances, for appointed counsel to expend the time and effort required to adequately represent a client in a capital case." (Id., at 1522). But the Court didn't stop there. It went on to praise a 1990 decision of the Supreme Court of Oklahoma which held that the payment of $3,200 to an attorney "was so confiscatory it could amount to an improper taking of private property." (Id., at n. 18)
What makes the Court's statements all the more curious is that under the provisions of the Federal Criminal Justice Act, 18 U.S.C. § 3006A(d)(2) ("CJA"), the maximum amount payable to CJA counsel in a case in which one or more felonies are charged "shall not exceed $3,500 for each attorney" without going through a long and complicated process that requires, inter alia, the approval of the chief judge of the Circuit. While the Court's criticism was directed at the State of Oklahoma - and not at the CJA - doesn't the same rationale apply? Maybe Justice Brennan wasn't so wrong when he wrote his oft-criticized statement that: "Undoubtedly, we must accept the harsh reality that the quality of a criminal defendant's representation frequently may turn on his ability to retain the best counsel money can buy." Morris v. Slappy, 461 U.S. 1, 23 (1983).
Thaddeus-X v. Blatter, 110 F.3d 1233 (6th Cir. 1997) (Judge Moore)
This is an important decision about the rights of jailhouse lawyers as well as a source of much of the current law on the rights of prisoners generally; and for those reasons it will probably be banned from most prison law libraries. Plaintiffs Thaddeus-X, a jailhouse lawyer ("X") and another prisoner, Bell, brought this civil rights suit claiming that prison officials had retaliated against them for litigating a separate civil rights action against prison officials. In accordance with prison procedures, X and Bell executed a "Legal Assistance and Request Agreement" that was approved by a prison official. After a month, X was suddenly ordered to cease giving legal assistance to Bell; and, to make the order stick, prison officials refused to give either prisoner pens or pencils. One of the nice prison guards told X that he and some of his friends were "going to come in plaintiff's cell and f..k him" because of the lawsuit he had helped Bell file. That same day, X was told that he was being moved "on base", i.e., to the lowest floor of administrative segregation as punishment for filing so many lawsuits and administrative grievances. He was then moved to the unit that houses mentally ill patients - a unit where the mentally ill prisoners "throw human waste at each other and [where] there is a constant odor of human waste and urine" - a claim that was never disputed by prison officials. (For more on the cruelties often inflicted on prisoners by prison guards, see the Quote of the Week below.)
Initially, the lower court granted the defendants a summary judgment against all the claims asserted by the plaintiffs, including harassment, retaliation and violations of the Eighth Amendment's proscriptions against cruel and unusual punishment. On appeal, however, the Sixth Circuit reversed in part and its decision is filled with significant rulings. For example, the Court affirmed that "retaliation against an inmate for exercising his constitutional rights is itself a violation of the Constitution." (Id., at 1237). "While there is technically no independent right to assist, prison officials may not prevent such assistance or retaliate for providing such assistance where no reasonable alternatives are available." (Id., at 1238). "Access to law books does not necessarily suffice to ensure that uneducated or non-English-speaking inmates have 'a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement'." (Id.) "A plaintiff claiming that prison authorities have retaliated against him for helping another inmate with legal work need not show that the retaliation caused him to miss a filing deadline, but only that the retaliation occurred because he provided the necessary legal assistance." (Id., at 1240). And, finally: "Deference to prison administration 'does not insulate from review actions taken in bad faith and for no legitimate purpose'." (Id., at 1246).
United States v. Chee, 110 F.3d 1489 (9th Cir. 1997) (Judge Brunetti)
This case relates to a defendant's eligibility for a three-level acceptance of responsibility sentence reduction under U.S.S.G. § 3E1.1(b). Here, although the Ninth Circuit refused to reverse the lower court's determination not to grant the defendant the third-level reduction, the case is noted for Judge' Fernandez' dissent. He was critical of the majority's decision because the denial of the third level was based on the claim that the defendant had "not completely accepted responsibility for his actions." He argued that the district court's analysis was wrong because it overlooked the fact that it ultimately decided that the defendant did accept his responsibility by granting him a two-level reduction. Citing U.S. v. Stoops, 25 F.3d 820 (9th Cir. 1994), he stated: "[T]he inquiry for the third level does not involve a reconsideration of the factors leading to the two-level reduction; the only issue for the third level is timing." (Id., at 1495). Thus, in his opinion, the district court was obligated to give the third-level reduction because it had already determined that the defendant had accepted responsibility.
Judge Fernandez also responded to the Government's assertion that the third-level increase was inappropriate because it had to prepare for trial. In this case, the defendant went to the police within 12 hours of his crime and gave them a full statement about his assault. "We have previously . . . held that a defendant who confessed soon after the crime but then held up the plea process by challenging [some aspect of the crime] was still entitled to a three-level reduction for acceptance of responsibility. . . . In Stoops, we explained that 'a defendant qualifies under subsection (b)(1) if he timely provides complete information , whether or not he . . . timely notifies the government of his intent to plead guilty.' . . . Under Stoops, the fact that he later challenged the legal effect of some of his admissions does not obviate the fact that he quickly and freely confessed to the assault."
Miller v. Selsky, 111 F.3d 7 (2nd Cir. 1997) (Judge Leval)
Carty v. Farrelly, 957 F.Supp. 727 (D.Virgin Islands) (Judge Brotman)
Both of these prison cases are noted for their holdings on the realities of prison life. In the Miller case, the Second Circuit considered a claim for damages that was filed after the prisoner had been placed in the hole for 125 days before his misconduct charge was vacated due to "procedural errors." The lower court routinely dismissed the civil rights action on the grounds that Sandin v. Conner, 132 L.Ed.2d 418 (1995) stood for the proposition that "disciplinary confinement could never, as a matter of law, impose [the type of] hardship" that involves an actionable deprivation of liberty. In reversing that ruling, the Second Circuit emphatically held that "Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest." (Id., at 9).
But the lollapalooza was the Carty case - a case that raises serious questions about the wisdom of Congress' attempt, through the adoption of the Prison Litigation Reform Act (the "PLRA"), to rescind all existing court orders which granted prospective relief involving prison conditions. Here, the Court never addressed some of he many challenges to the constitutionality of the PLRA. Under the facts of this case, it didn't have to - because the prevailing conditions at the Criminal Justice Complex in St. Thomas were so outrageous that the Court found all of the defendants, including the Governor of the Virgin Islands, in contempt of court for refusing to comply with its previous orders. This is a text-book case of everything that could possibly be wrong with the operations of a prison: from serious overcrowding, to prison brutality, to the absence of medical care, to revolting sanitary conditions, and more. The decision also contains a litany of important holdings on many of these topics - and it strongly affirmed the Supreme Court's admonition that insufficient financial means do not "justify the . . . perpetuation of constitutional violations." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).
United States v. Jones, 957 F.Supp. 1088 (E.D.Ark. 1997) (Judge Eisele)
If this decision is affirmed on appeal, it could have a dramatic impact on at least one aspect of the operations of the autocratic Probation Office, which now supervises more people than are in prison. In this case, two different defendants sought and obtained extraordinary relief from the district court against the Probation Office. After their release from prison, both defendants were required by their probation officers to accept modifications to their terms of supervised release. One defendant was required to attend a drug-abuse program that was never ordered by the court; and the other was required to accept an extension of his stay in a half-way house by an additional 120 days. In addition, both defendants were required to sign a broad waiver of rights to a hearing and to the assistance of counsel at any future revocation proceedings. Both defendants were subsequently charged with violating their conditions of supervised release; and their probation officers filed petitions to revoke their terms of supervised release and to re-imprison them.
Represented by the Federal Public Defenders Office, each defendant then filed a motion to dismiss the petitions to revoke their supervised release and a motion seeking a declaratory judgment that the modifications were invalid and an injunction. The Court first addressed the defendants' claims that the probation office's practice of petitioning the court for revocation of supervised release exceeds the authority granted by statute to that office and constitutes the unauthorized practice of law. The district court agreed and dismissed both petitions. Although it agreed that the practice employed by the Probation Office in Arkansas is followed in a number of other locales, it ruled that "the plain language of the statutes cited to the Court clearly supports Defendants' position that such petitioning is inappropriate. Those statutes provide for the reporting of violations by the probation office, not the petitioning of the Court for action. . . . It is clear to the Court, moreover, that, when probation officers - neither lawyers nor pro se litigants - petition the Court, they are practicing law and that such practice is unauthorized and unlawful. Finally, as a matter of policy, allowing the probation office to petition the Court seems to magnify the unfortunate tendency of probation officers under the Sentencing Guidelines regime to be advocates not for their probationers but for 'the People'. That job, it seems clear to this Court, belongs to the United States Attorney." (Id., at 1091).
Next, the Court addressed the defendants' claims that the modifications of their conditions of supervised release were improper under the provisions of Rule 32.1 of the Fed.R.Crim.P. The Court agreed that Rule 32.1 grants probationers the right to a hearing with the assistance of counsel before modifications of their conditions of supervised release. But it also concluded that such rights can be waived - provided such waivers are knowing, intelligent and voluntary. Under the facts of this case, the Court declined to decide whether the waivers that were given were knowing, voluntary and intelligent because both defendants had committed violations of conditions of supervised release "that had nothing to do with the modifications with which the relevant waivers were concerned." It also warned that a defendant cannot refuse to comply with an order from his probation officer "on his own determination that the waiver was bad." Rather, the probationer must petition the Court and assert the invalidity of the modification at the time it is proposed.
[Editor's Note: For a different view on this topic, see U.S. v. Wilson, 973 F.Supp. 1031 (W.D.Okla. 1997) which was reviewed in the October 27, 1997 issue of Punch and Jurists (Vol. 4, No.43)].
- Two views on the senseless cruelties so often inflicted by prison guards.
"A bland American civil servant can be as much of a beast as a ferocious concentration camp guard if he does not think about what his actions are doing. . . . Half the cruelties in human history have been inflicted by conscientious servants of the State. The mildest of bureaucrats can be a brute if he does not raise his eyes from his task and consider the human beings on whom he is having an impact." Judge Noonan, concurring, in Jordan v. Gardner, 986 F.2d 1521, 1544 (9th Cir. 1993).
"The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Justice Brandeis, in Olmstead v. United States, 227 U.S. 438, 479 (1927).