Vol. 10, No. 11
Covering Cases Published in the Advance Sheets through March 17, 2003

Note: The full text of all of the decisions noted below has been incorporated in our on-line data base which is available for subscribers only. Thus, while the names of some of the cases are highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Highlights of this Issue:

Supreme Court

Daubert

Sentencing


Double Jeopardy


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U.S. v. Crisp, No. 01-4953 (4th Cir. 03/31/2003) (Judge King)

The defendant in this case was convicted of an armed bank robbery in North Carolina; and he was sentenced to 356 months in prison. He appealed, arguing that his trial was tainted because the Government’s presentation of inadmissible expert testimony on both fingerprint evidence and handwriting evidence. Specifically, he charged that the Government had failed to satisfy the criteria for expert opinion testimony established under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny.

The majority dismissed the appeal, principally on the ground that “fingerprint and handwriting analysis have long been recognized by the courts as sound methods for making reliable identifications.” In fact, the majority noted that “fingerprint identification has been admissible as reliable evidence in criminal trials in this country since at least 1911.” The majority also observed that every Circuit to have addressed handwriting evidence has concluded that such evidence is properly admissible.

What is particularly significant about this decision is Judge Michael’s thought provoking and persuasive dissent. He wrote: “In dissenting, I am not suggesting that fingerprint and handwriting evidence cannot be shown to satisfy Daubert. I am only making the point that the government did not establish in Crisp's case that this evidence is reliable. The government has had ten years to comply with Daubert. It should not be given a pass in this case.”

In explaining his decision, Judge Michael noted that Daubert lists five factors for assessing the reliability of expert scientific testimony: (1) whether the expert's theory can be or has been tested; (2) whether the theory has withstood peer review and publication; (3) whether there is a known or potential rate of error; (4) whether standards exist for the application of the theory; and (5) whether the theory has been generally accepted by the relevant scientific community. (citing Daubert, id., at 593-94).

Judge Michael then wrote: “These factors are not meant to be exclusive or necessarily dispositive. However, when ‘the Daubert factors are reasonable measures of the [expert] testimony's reliability, the Supreme Court has instructed that the trial judge should consider them’.”

With great patience, Judge Michael carefully analyzed all the evidence presented by the Government in this case and concluded that the Government’s evidence had “failed to satisfy any of the Daubert requirements for establishing scientific reliability.” (Emphasis added). A synthesis of his underlying premise was the following:

“The majority excuses fingerprint and handwriting analysis from any rigorous Daubert scrutiny because these techniques are generally accepted and have been examined for nearly one hundred years in our adversarial system of litigation. These circumstances are not sufficient to demonstrate reliability in the aftermath of Daubert. To say that expert evidence is reliable because it is generally accepted is to say that it is admissible under Daubert because it was admissible under the old rule articulated in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (allowing expert evidence that had ‘gained general acceptance in the particular field in which it belongs’). Frye's ‘general acceptance’ rule was replaced by Fed. R. Evid. 702, which now requires expert testimony to be ‘the product of reliable principles and methods.’ Daubert, of course, outlines the factors that are relevant to the determination of reliability. Nothing in the Supreme Court's opinion in Daubert suggests that evidence that was admitted under Frye is grandfathered in or is free of the more exacting analysis now required. . . .

“Nor is fingerprint and handwriting analysis necessarily reliable because it has been subjected to the adversarial process of litigation. In a criminal case like this one, adversarial testing simply means that the defense lawyer cross-examines the government's expert. That, I concede, is important, but it only goes part way. In most criminal cases, particularly those in which the defendant is indigent, the defendant does not have access to an independent expert who could review the analyses and conclusions of the prosecution's expert. Simon Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification 280 (2001) [hereinafter Cole, Suspect Identities] (noting that defense lawyers rarely challenge fingerprint evidence, in part because they often do not have the funds to hire experts). Lack of money is only one problem. Lack of independent crime laboratories is another. The great majority of crime laboratories are operated by law enforcement agencies. Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol'y & L. 439, 470 (1997); Paul C. Giannelli, ‘Junk Science’: The Criminal Cases, 84 J. Crim. L. & Criminology 105, 118 (1993). More important, criminal defendants do not appear to have access to experts who could challenge the basic principles and methodology of fingerprint and handwriting analysis. Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brooklyn L. Rev. 13, 38-39 (2001) (explaining that fingerprint evidence came to be seen as particularly powerful in part because it was so rarely challenged by the defense); Cole, Suspect Identities, supra at 280 (reporting that New York City police officers caught fabricating evidence chose to create fingerprint evidence because it was so unlikely to be challenged). Our adversarial system has much to commend it, but it is not a general substitute for the specific Daubert inquiry. The system without Daubert did not work to ensure the reliability of fingerprint and handwriting analysis.

“Nothing in the history of the use of fingerprint and handwriting evidence leads me to conclude that it should be admitted without the scrutiny now required by Daubert. The government, of course, has the burden to put forward evidence ‘from which the court can determine that the proffered testimony is properly admissible’ under Daubert. . . . The government utterly failed to meet its burden here.”


U.S. v. Gregory, No. 01-10737 (9th Cir. 03/11/2003) (Judge Fisher)

In October 1999, the government indicted Miguel Gregory on drug charges. Gregory pled guilty to the charges and was sentenced to 247 days in prison, eight months of home detention and three years of supervised release. Then in March 2001, while Gregory was on home detention after serving his prison time, the government issued a third superseding indictment charging Gregory with money laundering in connection with the same drug deals that had landed him in prison. In a decision reported at U.S. v. Gregory, 160 F.Supp.2d 1166 (D.Haw. 2001) (P&J, 10/22/01), Judge Mollway of the D.Haw. found that Gregory had been prejudiced by the government's negligence in delaying the money laundering charges, and she dismissed the third superseding indictment as violating Gregory’s rights to a speedy trial under the Sixth Amendment and his rights under the Fifth Amendment that he not be denied due process as a result of excessive preindictment delay.

The Government appealed that ruling, and in this decision, the Ninth Circuit reversed, holding that “despite the Government’s negligent delay in bringing the third superseding indictment,” the defendant had failed to show any prejudice attributable to the delay. (Emphasis added).

In his decision, Judge Fisher commented that while the Government’s decision to delay filing a third superseding indictment for money laundering charges arising out of the same course of conduct as his drug crimes for which he had already served time “may be unusual, . . . [it] is not in and of itself a constitutional violation.”

Gregory argued that the 22-month delay in the new prosecution violated his rights to a speedy trial. The Court analyzed that claim in light of the standards enunciated by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972) and in Doggett v. U.S., 505 U.S. 647 (1992).

In Barker, the Court established four factors that must be examined to determine whether there has been a violation of a defendant’s tight to a speedy trial, namely: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant. (Barker, id., at 530).

In Doggett, the Court held that actual prejudice is typically demonstrated in one of three ways: “oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the [accused’s] defense will be impaired.” (Doggett, id., at 657).

Applying those standards, the Court concluded that “[a]lthough we do not condone the government’s decision to issue a delayed superseding indictment [a classical judicial oxymoron], we conclude that . . . there is no clear prejudice to Gregory resulting from the delay.”

Of particular note, the Court addressed the very real sentencing prejudice that the defendant could face if he were convicted of the money laundering charges. The Court stated that “what makes [that] prejudice speculative . . . is the leeway in the guidelines for departures.” Essentially, the Court concluded that Gregory could not claim any prejudice on any new sentence that might be imposed because “the district court has at least two options to mitigate the prejudice that might result from the government’s choice to indict Gregory on the money laundering charges after he had pled guilty to and served his time for the drug offenses.” Those potential options were the ability to depart downward in Gregory’s criminal history category, pursuant to the provisions of U.S.S.G. § 4A1.3; and the ability to depart downward if “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration” by the Guidelines, pursuant to the provisions of U.S.S.G. § 5K2.0.

[For the record, we note that departures pursuant to § 5K2.0 henceforth appear to be doomed under the provisions of the hastily passed Feeney Amendment, as discussed below.]


In Brief

Fourth Amendment: Ganwich v. Knapp, 319 F.3d 1115 (9th Cir. 2003) - Law enforcement officers, investigating charges of criminal fraud by a corporation, violated the Fourth Amendment rights of the employees of that corporation by detaining them incommunicado, without probable cause, and using the threat of continued detention to coerce them into submitting to interrogations.

Prison Issues: Calhoun v. Detella, 319 F.3d 936 (7th Cir. 2003) - Although 42 U.S.C. § 1997e(e) bars Federal civil actions by a prisoner for mental and emotional injuries suffered while in custody without a showing of some prior physical injury, that statute does not foreclose actions for nominal or punitive damages for violations of the Eighth Amendment not involving any physical injury (here a strip search of a male prisoner conducted in the presence of female guards); Savard v. Rhode Island, 320 F.3d 34 (1st Cir. 2003) - In a § 1983 civil rights action alleging illegal strip and visual body cavity searches of arrestees without reasonable suspicion, corrections officials were not entitled to qualified immunity absent a determination that they were objectively reasonable in believing that their conduct in conducting the searches was lawful.


The Feeney Amendment

Last week we noted that the House of Representatives had taken action on a last-minute, little-noticed and even less-discussed add-on to the highly popular Child Abduction Prevention Act. That add-on, known as the Feeney Amendment, was suddenly added to the pending bill under the guise of limiting downward departures in cases involving child offenders. In fact, the proposal was far broader and would result in far-reaching and even radical changes to the Federal sentencing system.

The Feeney Amendment immediately met with a huge outcry from many disparate sources (including even the Sentencing Commission - which was never consulted on the amendments - and the judicial leader of conservative causes, Chief Justice Rehnquist of the Supreme Court). All of the opponents argued that the Feeney Amendment was ill-conceived and that its sponsors had not adequately considered the profound and lasting impacts that the legislation would have on sentencing system established under the Federal Sentencing Guidelines.

On April 10, 2003, as Congress desperately raced to adjourn for its annual Spring break, both the House and the Senate overwhelmingly passed a slightly modified, but still disastrous, version of the Feeney Amendment. Clearly afraid to vote against a bill with that evoked visions of God, apple-pie and motherhood - no matter what else was included in the bill - the House passed the Feeney Amendment by a vote of 400 to 25 and then the Senate outdid the House with its own 98 to 0 vote in favor.

Although we have not yet seen the final version of the bill, we do know that it contains, among things, provisions that would:

• restrict the ability of federal judges to grant sentencing departures on any grounds for crimes against children and sex offenses

• discourage judges from making downward departures in all other cases by subjecting them to burdensome reporting requirements and Justice Department scrutiny if they do so

• require a government motion to award 3 levels for timely acceptance of responsibility and prohibit the Commission from ever altering this amendment

• prohibit downward departures on remand based on any new grounds

• require de novo appellate review of all sentencing departures by mandating that the appellate courts review de novo the facts found by the lower courts

• require the DOJ to report all downward departures to Judiciary Committees, unless within 90 days the Attorney General proposes new regulations for opposing and appealing downward departures

• prohibit the Commission, for a period of two years, from adding new departure grounds or passing amendments that are inconsistent with the departure restrictions

• direct the Sentencing Commission to amend the Guidelines and policy statements "to ensure that the incidence of downward departures are [sic] substantially reduced”

All of these features are a slap in the face of any judicial discretion at sentencing. They are clearly designed to chill - if not bar outright - the ability of judges to give downward departures - which the bill’s sponsors claimed was necessary because departures have become too frequent and have resulted in sentences that are simply not severe enough in the minds of Congress!!! In response to that charge, Congressman Delahunt of Mass. noted, in a speech on the House floor on April 10, 2003: “The truth is that the vast majority of the downward departures are sought, not by the judge, but by the government itself. Of the nearly 20,000 downward departures granted in 2001, 79 percent were requested by the prosecution - most in return for the cooperation of the defendant, and the rest in five Mexican border districts in which the government uses departures to clear cases more quickly.”

To stay abreast of the latest information about this outrageous and ill-conceived bill and the full scope of the dramatic effects it will have on Federal sentencing practices, visit the Bulletin Board section of our site at www.ussguide.com or the NACDL’s special Web page devoted to this new piece of legislation at: http://www.nacdl.org/departures

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

53

406

17,004

District Courts

27

286

   9,224


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