I enjoy reading opinions by Eleventh Circuit Judge, Ed Carnes. And Brewster v. Hetzel may be my new favorite. It’s a rare habeas case out of Alabama (or anywhere) where the habeas petitioner wins. And the subject matter is a deadlocked jury and the lengths a trial court went to flip the holdouts for acquittal. Judge Carnes begins with a history lesson. At one time juries could be deprived of food and water until the holdouts caved. And when that didn’t work, judge had other tricks up their sleeves.

And if jurors did not unanimously agree on one before the judges left town, Blackstone recounted, “the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.” Id. at *376. They were hauled around in the cart “until a judgment ‘bounced out.’” Renico v. Lett, 559 U.S. 766, 780, 130 S. Ct. 1855, 1866 (2010) (Stevens, J., dissenting). Which is to say until the resolve bounced out of the holdout jurors.

The opinion gives a few other examples of judicial coercion of hung juries of the past before shifting to the facts at hand. “We no longer try to coerce holdout jurors to reach a verdict they cannot abide. Or at least most times we don’t. The jury that convicted our appellant, Sumnar Brewster, might feel some affinity with the juries of yesteryear.” After giving the jury four separate Allen charges, the jury heard that the lone holdout for acquittal was doing a crossword puzzle rather than continue being browbeat by the other eleven. At which point, the judge ordered all pens and reading materials removed. from the room. “Just 18 minutes after all reading materials were removed, Brewster’s jury dutifully — and we do mean dutifully — returned a guilty verdict.” (Court’s emphasis).

The opinion is informative, readable, and fun. Judge Carnes stands out as one of the best legal writers around. And the opinion in Brewster v. Hetzel is a good model for legal writers to emulate.

There has been much talk in the media about Olevik v. State. My algebra teacher long ago would make me “show my work” on tests and sometimes at the chalkboard. I’ve linked to the opinion where you can see where the Supreme Court has shown its work in 49 pages of legal writing.  But I’ll highlight a few key points.

The holding in Olevik is that the Georgia State Constitution’s protections against self-incrimination apply to acts of the accused that generate incriminating evidence as well as to statements made that are incriminating — and providing deep lung air is an incriminating act as defined by the Georgia Constitution. Under Article 1, Section 1, Paragraph VI of the Georgia Constitution, “no person shall be compelled to give testimony tending in any manner to be self-incriminating.” Note, the Georgia Supreme Court has not touched upon the Fifth Amendment of the United States Constitution. And the Georgia Supreme Court has overturned a line of cases going back to a case called Klink (aptly named).

The Court makes it clear that some acts are testimonial and are essentially the same as words when it comes to self-incrimination. Some examples from the case:

Self Incriminating Acts

  • Forcing a Defendant to put his feet on footprints located near a crime scene;
  • Requiring a Defendant to stand up at his trial so that the witness could verity that the defendant’s leg had been amputated in a way that corresponded to tracks left at a crime scene;
  • Forcing a driver to drive his truck onto scales to see if his rig is overweight.
  • Forcing a suspect to provide a handwriting sample.

Not Self-Incriminating Acts

  • Requiring the accused to be present so that law enforcement an undress him to remove bloodstained clothes;
  • Requiring the accused to stand in place to be photographed;
  • Requiring the accused to provide a DNA sample;
  • Taking an impression of the teeth of the accused;
  • Requiring the accused to undergo surgery for the removal of a bullet.

Blowing hard into a breath machine is a self-incriminating act because the defendant has to do some work to produce air from deep in his lungs to produce a sample. If you’ve ever taken one of these, either at a jail or at some booth at a beer festival where a DUI lawyer was a sponsor, you will know what I mean. If scientists ever perfect a technology that will allow police to extract fog from a mirror to test for blood alcohol, then future drunk drivers will be in big trouble. For now though, the method of extraction is an incriminating act.

What Does it All Mean?

It all means nothing to Mr. Olevik, who lost his appeal anyway. Future defendants, however, can testify at a motion to suppress hearing and say “when I heard what the police officer read that card, I felt like he was forcing me to give him a breath sample.” And, if the trier of fact finds that the statement is truthful, then the evidence of the breath test is inadmissible. However, if the police extract a blood sample, then there is no self-incriminating act. And if the finder of fact finds that a suspect voluntarily gave a breath sample, then there was no self-incriminating act. However, it is very likely that when a suspect refuses to provide a breath sample then the State will not be allowed to comment on such refusal at trial. A thornier question will be whether the State can comment upon the refusal to take a blood test.

And there, in a nutshell, is Olevik. By the way, this is not a Fifth Amendment case. It is only good in Georgia. Because it is an interpretation of the Georgia Constitution.

 

One of the hats I wear is that of the Federal opinions editor for a caselaw update that the Georgia Association of Criminal Defense Lawyers publishes monthly. It has been a slow month for Eleventh Circuit Opinions. But there is one that I will be writing up. And this blog post will pull double duty as a caselaw summary for that publication.

The case is United States v. Sheels, a January 31 published opinion. This case deals with whether it was proper to impose a four-point enhancement under 2G2.1(b)(4) of the Federal Sentencing Guidelines. The question turns on what is sadistic of masochistic conduct.

The Point:

For purposes of determining whether to impose a four-point enhancement for a conviction for sexual exploitation of a minor by production of sexually explicit material, it is proper to impose the enhancement even if the defendant is the recipient of sadistic or masochistic conduct was directed at him rather than from him.

The Facts:

Mr. Sheels was convicted of one count of producing and one count of receiving child pornography. He received a sentence of 600 months to serve. The sentencing added four points to his base level offense of 32 because the material contained the following as defined by 2G2.1 of the Federal Sentencing Guidelines:

If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.

Mr. Sheels argued that the enhancement did not apply because he was the recipient of the argument. The Court affirmed, having determined that the depiction of such conduct, in any form, was sufficient to apply the enhancement.

The Reasoning:

The Court found that it was not necessary to look further than the plain language of the guidelines to answer the question. “Involved material that portrays,” applies to the conduct in any form. The Court then went to a dictionary definition of the word involve.

There were no cases directly on point. And Mr. Sheels relied on some dicta from other cases potentially to support his position:

He cites a number of cases, like United States v. Hall, 312 F.3d 1250, 1261 (11th Cir. 2002) (quotation marks omitted), which contain statements like: “[A] photograph is sadistic within the meaning of Section 2G2.2(b)(3)3 when it depicts the subjection of a young child to a sexual act that would have to be painful.” But those cases merely stand for the proposition that material depicting sadistic or masochistic conduct directed towards the child is sufficient to warrant the application of a § 2G2.1(b)(4) enhancement, not that it is necessary.

Ultimately, the Court held that even the object of sadistic or masochistic conduct is subject to the enhancement. To the extent that this point was unresolved by the language of the guidelines, it is resolved now.

 

Moments ago, the Ninth Circuit Court of Appeals ordered that the temporary restraining order imposed on the Republican presidential administration’s travel ban will remain in place. The Court has found that the states of Washington and Minnesota have standing to challenge the ban, that the Republican administration is unlikely to prevail on the merits in the lawsuit, and that the balance of hardship to the public interest also weighs in favor of the States over the ban.

Background

On January 27, 2017, the Republican administration issued an executive order suspending travel for 90 days from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The EO also suspended the United States Refugee Admission Program. And it suspended indefinitely the entry of all Syrian refugees.

Shortly thereafter, the State of Washington brought suit challenging the program on various Constitutional grounds including Due Process and violation of the First Amendment. Washington sought a temporary restraining order against enforcement of the executive order, which was granted, arguing in part that “the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a ‘Muslim ban’ as the President had stated during his presidential campaign that he would do.”

The Federal government immediately appealed to the Ninth Circuit for a stay of the TRO.

Standing

The Court found that the states have standing to bring the suit because they could show a “concrete and particularized injury” to their university system. Teacher, students, and researchers were stranded without the ability to enter the country. Their absence threatened essential state functions.

Reviewabiliy

The Federal government argued on behalf of the Republican administration that the order was unreviewable by any court because it touched upon national security. The Court made short shrift of what would be a fairly dangerous argument to our system of government. Presidential authority under Article II is seldom if ever beyond review by an Article III Court.

Factors

The Court applied a four-part test to the government’s appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

On Due Process grounds, the Court reasoned that the Republican administration was unlikely to prevail on the merits. Because the Executive Order summarily stopped all immigrants, including permanent residents, from entering the country with no due process and restricted travel outside the country (again) without due process, the Executive Order is likely to be found unconstitutional. And because the system completely suspends the asylum process for immigrants from certain countries, it is likely to be found violative of Due Process.

Secondly, the administration is unlikely to prevail on the First Amendment grounds. Here, the Court went beyond the four corners of the Executive Order to look to the Republican Chief Executive’s intent as expressed in public statements and on social media regarding a desire to ban Muslims from entering the country.

In terms of the balance of hardship and the public interest, the Court reasoned that the Federal government has pointed to “no evidence” that any alien from one of the named countries has ever engaged in terrorism in the United States. By contrast, the states have been able to point to injury from the restriction on travel from those effected by the ban.

Next Steps

The Republican Administration will likely petition for a rehearing en banc to seek a hearing before the entire Ninth Circuit. This order was issued by a three-judge panel. And the matter could ultimately go to the United States Supreme Court. However, two things are important. First, there are only 8 justices. In the event of a tie, the Ninth Circuit ruling will be upheld. And this order does not reach the merits of the case. Rather, there is merely a TRO until the merits are reached. So, there may be an uphill battle for the Federal government on a cert. petition.

Adam Liptak has a comprehensive article in today’s New York Times over nationwide appellate proceedings regarding President Trump’s Executive Order banning travel from several Middle Eastern nations. The article tracks the progress of an order from the United States District Court for the Western District of Washington staying enforcement of much of the Executive Order. The administration has appealed and that case is moving forward on an accelerated briefing schedule in the Ninth Circuit. On the East Coast, the United States District Court for the District of Massachusetts has refused to grant a stay of the Executive Order’s enforcement, reasoning that the immigrants are not likely to prevail on the merits.

The issue in the case is how to draw the line between executive power under Article II versus the First Amendment’s protection against the establishment of a religion. Article II vests in the president wide latitude in conducting foreign affairs and in regulating immigration into the country.

Issues to Consider

  • To what extent may we look beyond the text of the executive order? The text mentions nothing about banning immigrants on the basis of religion. Here’s the relevant text:

In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

  • The President has made some statements about a potential preference for Christians seeking to enter the United States to escape persecution. But I am unclear on the extent to which the courts are allowed to look to such statements versus the language of the order.
  • Even if the restriction is wholly or partially based in religion, is there a First-Amendment violation? May religion be a factor in immigration decisions? It’s a murkier question than it might appear on its face. May the government weigh a person’s religion as a factor in determining the extent to which the person poses a threat to safety? The question would turn on whether doing so “establishes” a religion. For instance, let’s imagine a hypothetical religion. Suppose there was a sect of people who believed that the true God countenanced no secular leaders and that it was the sacred duty of a follower of that religion to overthrow any secular governmental figures. In other words, the central religious tenets of our hypothetical religion included a duty to war against the idea of government. Would it be a violation of the First Amendment to bar adherents to that religion from entering the country? The answer would appear to be no.

If I were to place a bet on the outcome of this litigation, I would bet on the administration. Beyond the Constitution, Congress has vested the President with broad power over immigration. Adam Liptak writes:

A key part of immigration law does give the president broad power. It says, “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

But another part of the law forbids discrimination “because of the person’s race, sex, nationality, place of birth or place of residence,” but only “in the issuance of an immigrant visa.” The Trump administration argues that the power to bar entry, the subject of the first law, is broader than the limits on issuing visas.

I make no editorial comment upon the wisdom of the president’s immigration decisions. Rather, in terms of the law, he likely stands on a solid footing with respect to current legal challenges to the Order.

At the start of this week, I penned a post critical of how President Trump handled the firing of Sally Yates. Today, I write to commend his nomination of Judge Gorsuch for the United States Supreme Court.

Textualists and the criminal appellate bar are natural allies. And such is the case with this pick. I want to discuss briefly one case here to give you a glimpse of how a Justice Gorsuch might approach criminal cases. And if you have about forty-five minutes, I cannot recommend enough the most recent edition of the First Mondays Podcast, where you will find an interview with a former Gorsuch clerk and a discussion of some of the judge’s more notable tenth-circuit opinions (I swear these guys aren’t paying me to promote them).

The case I want to highlight is United States v. Gamez Perez. In that case, Judge Gorsuch wrote a dissent to a petition for rehearing en banc. Here was the issue. Mr. Gamez Perez was convicted to possession of a firearm by a convicted felon. His defense was that he did not know that he was a convicted felon. He had good reason not to know his status as a felon. When he entered a plea to the underlying offense in the state system, the state-court judge told him that he was not a felon. He was later charged with possessing a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The opinion in the case was that the statute required only that a defendant know that he was in possession of a firearm. The court held that there was no mens rea element for the status of a convicted felon.

Judge Gorsuch dissented reasoning that the knowledge element should spread to include knowledge that a defendant is a convicted felon. He based his reasoning on a fairly established canon of statutory construction that mens rea language, if placed at the beginning of a sentence spread to all other substantive elements of the statute. And he based his opinion on basic rules of grammar and usage. Here are a couple of points that I like about Judge Gorsuch’s approach:

  • First, his writing style is excellent. I could hand this opinion to a non-lawyer friend and feel confident that she could follow it. But an appellate lawyer would see that the writing is professional and thorough. There is no higher praise for legal writing than that. If I am going to read a justice’s opinions for the next 30 years, I like knowing that it won’t give me  headaches.
  • He reads the text, researches the law, and lets those things guide him to the result. He does not envision a result then bend the law to get there. This approach may be bad for the criminal defendant in specific instances. But it will always be fair to the criminal defendant and to the prosecution. I find the approach to be sadly rare. The criminal defense bar endures no end of judicial linguistic gymnastics so that law enforcement can “get the bad guy.” Just today, I was speaking to a potential client about the standard for getting something done in a post-conviction matter. And in the first half of my explanation I explained the standard under the law. In the second half, I explained how the just would really decide the case. It is nice when the relevant statute is the guide to how the case will be decided.
  • He seems to care about the defendant’s plight. While he is not bending the law to get to a result, he seems genuinely troubled that the state-level judge told the defendant that he was not a felon, and the defendant relied upon those re-assurances to his extreme detriment.
  • He is suspicious of arguments about legislative history where the statute is clear on its face. Whenever I have a solid argument on the law and a judge’s opinion starts getting into legislative history, I know that I am about to call a client to relay bad news.

In my career, I have never minded judges who sentence harshly. I have never minded judges who run their calendars in a controlling way. Sentencing and calendar management are what judges do. I have always disliked dealing with judges with an agenda that spills into how they rule. Prosecutors Apologists refer to this as “folksy wisdom,” “common sense,” or say “he always seems to get to the right place.” A judge who looks at the law, applies it to the facts, and works hard to be fair is about as much as you an ask for in a judge. And based upon this case and others I have read out of the Tench Circuit, Judge Gorsuch looks like a solid pick.

We live in strange times. But I still have faith in the judiciary and in lawyers. It took us just over a week of the Trump presidency to reach our first constitutional crisis, and the judiciary seems to be keeping its head. That branch of government will be tested in the months and years to come.

Our President reveres President Andrew Jackson. Andrew Jackson is perhaps best known for defying a court order so that he could could deport people in massive scale. In response to the United States Supreme Court’s ruling in Worcester v. Georgia, President Jackson said “John Marshal has made his decision, now let him enforce it.” That case was also an injunction case. Six years after the ruling in Worcester, the Cherokee were forcibly relocated to Oklahoma in what was one of the darkest moments in American history. The parallels between then and now and between the historic president and the modern one who reveres him are clear.

But I have faith in the judiciary and in the rule of law. Just this weekend, teams of volunteer lawyers showed up at airports around the nation to lend a hand to those left stranded by a bewildering executive order. They turned airport cafes into law offices and e-filed petitions for habeas relief. Lawyers visited with the families of those victimized by recent executive action. And courageous judges stepped up as well. One such judge was Ann M. Donnelly of the Eastern District of New York. Those who know her describe her as one who “will not be perturbed by the storm around her” and as one with “a firm moral compass.”

I can think of no time in our history when lawyers and the judicial branch are more critical to the survival of our Republic. Our nation is still young, and America is still very much an experiment. Lawyers like those who stepped up over the weekend and judges like Ann Donnelly provide hope. But the power of the judiciary and of our constitution is only as strong as the American people and our belief in the rule of law and our founding principles.

Georgia superior court judges have pursued some polarizing changes to the way they are regulated. Now, they want to impose strict restrictions on the public’ ability to record what happens in open court. On January 17, 2017, they will begin considering a new superior court rule that will give Georgia judges unprecedented control over their courtrooms. I have never been a superior court judge and don’t feel qualified to know the ins and outs. Judges have done a great job of getting their way with the legislature, and they have put in a sustained effort to clamp down on attempts to record what they do in the courtroom. So, it may not matter what critics or the public think.

Judges say that their position is credible because they like to have power over the people who come before them, whether parties, their lawyers, jurors, reporters, or spectators who want to come in and watch what happens. And judges have the ear of powerful legislatures, as a recent episode of This American Life demonstrates. Georgia jurists did not like the idea of an ethics committee telling them how to run their courtroom. So, they convinced some friends in the legislature to put the ethics committee under the legislature’s control.

Now, they are pushing new revisions to rule 22. This rule would give judges the power to hold in contempt a spectator in a courtroom who turns on a recording device (for instance, just about any smartphone). Even if the recording process is not disruptive, a spectator who records a judge, if the rule is enacted, could be summarily jailed:

(3) Spectators: All spectators while in a courtroom must turn the power off to any recording device while present in a courtroom. No use of any recording device is permitted unless authorized by the Court.

There are all sorts of arcane rules for spectators or attorneys to ask to use recording devices in the courtroom. And judges have great discretion to say “no,” upon such vague ideas that the act of recording would be “undignified.”

Critics claim that the rule is essentially a power grab. They are suspicious that judges are going to such lengths to shut down efforts to record what happens in their courtrooms. They reason that if judge have nothing to hide, why would they care if proceedings are recorded? These critics believe that there are some fairly ridiculous problems within the rule. For instance, spectators absolutely must power off recording devices in the courtroom. And they can only record upon proper request if they somehow learn how to make a proper request.

Critics think that this new rule is a thinly veiled attempt to prevent judges from getting caught doing things they should not do, such as the Cobb County Judge who was caught engaging in conversation with prosecutors about criminal cases while the defendants’ lawyers were not present. In fact, the superior court is harshest on attempts to record in a courtroom while court is not in session — exactly the setting for the Cobb County judge’s misdeed.

The rule is friendlier to parties or attorneys who want to record. But critics of the proposed rule would point out that parties and attorneys are least likely to rock the boat by asking to do so. They want to stay in the judge’s good graces because the judge will either decide the case, will decide what evidence the jury gets to hear, or will decide how long somebody goes off to prison. A spectator, on the other hand, has no dog in the fight. A spectator is not out to impress the judge and could care less if the judge is angry at her. And, wouldn’t you know it, spectators would be most restricted from recording if the rules passes.

Judges just think that that the critics of the rule are trying to interfere with their courtrooms. They’re the judge, so we should trust them with maximum control.

Personally, because I have to practice in front of these judges, I endorse the proposed rule change. But I note that many people are appalled by it. And many critics find it ironic that judges attacked the JQC because they claim  it sanctioned judges in a Star Chamber environment. But for the people who appear in front of those judges, the Star Chamber is just fine, thank you very much.

Yesterday, I spoke at a continuing legal education conference for the Georgia Association of Criminal Defense Lawyers. The topic was searches of cell phones incident to arrest.  I also discussed the  Application of the fifth amendment protection against self-incrimination when a suspect is compelled to provide a passcode to unlock a cell phone or to decrypt hard drive data.

Please contact me if you have questions or comments. Or you may comment here.

 

A few days ago, a newly-minted attorney asked me about what it takes to become an appellate attorney. I was initially at a loss for an answer. I never exactly set out to do this for a living. In law school, I was quite sure that I would be a trial lawyer. Only now am I closing out my last trial level cases and moving to being a 100% appellate and post-conviction practice.

How I Ended Up Here

I’m a frustrated novelist, which many lawyers are. And I enjoy the solitude of an office and a closed door. I greatly prefer it to calendar calls and all of the other time-wasting rituals of the criminal trial process. Back in law school, I worked for an attorney who had some appellate cases but did not particularly like them. At the time, he was sending the writing off to a former associate who had moved to the North Georgia mountains. I tried my hand at a couple of appeals. And soon, as a 3L, he was no longer sending those appeals out. I was doing them, and it was my role even as I developed a trial practice in his firm as an attorney. In my first year, I caught an issue on a murder case that led to a reversal of the conviction. I hit a lucky streak and reversed a few more, including an issue I caught in what was otherwise run-of-the-mill DUI trial. A Public Defender’s office started sending me all the appeals I wanted. The pay was low, but I was getting the reps in. There have been many losses, but there have been some astonishing wins. And it’s often fun.

It appears that appellate law is the thing that many lawyers and students want to do. For budding civil appellate lawyers not in a big firm, I can think of no comparable thing to PD office with a steady stream of cases. There are few civil trials these days and all sorts of incentives not to appeal. And if I had intended to build an appellate practice, I don’t know that I would have followed these exact steps.But nearly ever felony trial that ends in a one-word verdict is appealed, and there is not an attorney’s fee downside. Everybody understands why a person with a 3,000 year Georgia-style sentence would like to appeal his conviction.

It’s Not Always Fun

When it comes to retained work, there are all sorts of challenges. The trial lawyer who comes before you often makes a mess of things and leaves errors unchallenged. The client has often exhausted his life’s savings before the appeal starts. And when you get started on the case, the client and family have some serious trust issues with attorneys because the lawyer they chose to do a murder trial was not as good at murder trials as he was at drafting Uncle Jeff’s will. Also, if you are not in the appellate section of a major firm, there may be some limits on the ability to get some of the bigger cases. But those come with time. The client often cannot make the transition to standards and processes of appellate law, with a lingering interest in whether various witnesses were lying and with little interest in the erroneous burden-shifting jury charge that you find so fascinating. Also, in the era of Serial, Making of a Murderer, and other such shows, clients come to you armed with an expectation that you should work for free or nearly free just because must be outraged by their perceived injustice. And the internet has done more for amateur jailhouse lawyering than the jail law library ever did.

With that said, appellate practice feels like “real law” to me. I find that the suppressed writer has a good outlet to work. And this kind of practice lies at the intersection of advocacy and scholarship. Finally, the work can be done from nearly anywhere there is an internet connection. So, it is pretty easy to pick up and hide away from the office.

If I had to advise someone on how to build this practice, I would note that it takes years. And it takes some creative maneuvering to get your reps in — including some pretty low-paying gigs for a while. And there are fewer cases out there than there are DUIs or petty drug offenses. So, the dues are much higher. But I think it is worth it, even if there are days when I wonder why I even went to law school.