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Month: May 2018

Public Facebook Communications Deemed Disclosable to the Defense, and There May Be a Constitutional Argument to Obtain Private Facebook Communications

Posted By admin 2018-05-28 19:55:11

The Supreme Court of California found this week that public Facebook communications are disclosable to the defense pursuant to a lawful subpoena. Criminal lawyers have circulated this ruling, Facebook v. Supreme Court, widely in the Los Angeles defense community that I am part of. However, another important course of argument for the defense to pursue that has not received as much attention is also alluded to in the Facebook decision. In my view, the defense may also be able to argue that federal limits on disclosure of private or restricted electronic communications are unconstitutional when they undermine Fifth and Sixth Amendment rights.

The Stored Communications Act (SCA) imposes a federal limit on compelled disclosure from Internet sites, including Facebook. The SCA declares that, generally, service providers like Facebook may not disclose stored electronic communications except under specified circumstances. Exceptions include when a social media user consents to production of communications that she posted, and when such communications are compelled by law enforcement through search warrants or prosecutorial subpoenas. The defense, until this week, was long at a disadvantage when it came to obtaining production of electronic communications from servers like Facebook.

This week, the California Supreme Court ruled in Facebook v. Superior Court that public posts fit the SCA’s lawful consent exception, and that a provider must disclose public communications pursuant to a subpoena that is authorized under state law. Private or restricted communications between Internet users are deemed protected. There is some ambiguity to this ruling. For instance, how does a court distinguish public and private? Does a user need to set her entire profile as “public” in order for the communication to fall within an exception? Is there a limit on the number of people a communication can be sent to before it falls within the exception and can be compelled? The Court also left open whether accounts that were public and then changed to private could be subpoenaed. These issues are ripe for litigation.

Importantly, the Court also did not resolve the issue of whether the SCA is unconstitutional to the extent that it purports to afford providers a basis to refuse to comply with defense subpoenas. The defendants in the Facebook v. Superior Court matter argued that the SCA infringed their federal constitutional rights under the Fifth and Sixth Amendments to a fair trial, to present a complete defense, and to cross-examine witnesses support their subpoenas. No court has ever found the SCA to be unconstitutional on this ground. The Court of Appeal rejected this argument on the basis that a criminal defendant’s right to pretrial discovery is limited, though it has observed that the SCA might eventually need to be declared unconstitutional to the extent that it precludes enforcement of such a trial subpoena issued by the trial court itself, or by defendants, with production to the court.

Given the Court of Appeal’s observations, and the Supreme Court of California’s decision to decide the case on other grounds, it seems that defendants may be able to raise this constitutional argument when electronic communications are treated as restricted or private and thus not producible. I seek production of social medial communications in many of the criminal cases that I defend, and I am very excited to litigate this issue in the future.

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Supreme Court Reminds Defense Lawyers that the Defendant is the Master of Her Defense

Posted By admin 2018-05-21 19:13:46

The Supreme Court held in McCoy v. Louisiana that the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. In doing so, the Court overturned a Louisiana inmate’s death sentence because his lawyer had told the jury against the inmate’s objection that the inmate was guilty. This case is an important reminder for defense counsel about important ethical limitations on their role as counsel.

The majority in McCoy acknowledged that the defendant’s lawyer was “in a difficult position: he had an unruly client and faced a strong government case.” The defense lawyer’s apparent purpose in McCoy was to demonstrate that the defendant was suffering from a mental defect and incapable of forming the crime’s requisite specific intent. This was a reasonable, but unethical, strategy to help his client avoid the death penalty.

I find it helpful to return to the California Rules of Professional Conduct to confirm my ethical obligations to the client, court, public, and other counsel. Each case involves unique ethical considerations, even though the roles of counsel and the client are seemingly clearly defined. For instance, a criminal defendant’s lawyer may be responsible for what the Court describes as “trial management,” including what evidence to object to and what arguments to pursue. On the other hand, the defendant has the right to make certain fundamental decisions, including whether to plead guilty or waive the right to a jury trial, as well as the decision to maintain one’s innocence. These distinct roles can rub against each other in contexts like in McCoy, where a client if found to meet the low threshold of being fit stand trial, but may not, from the lawyer’s perspective, be making a reasonable tactical decision for her case. Ultimately, McCoy reminds defense counsel that clients who are fit to stand trial must respect a client’s autonomy.

The Court’s ruling in McCoy highlights the principle that the client alone is the master of his defense. This precept finds resonance in the Sixth Amendment, which grants the right to put on a defense directly and personally to the accused-not to his lawyer and not to the state. Accordingly, my approach is to offer well-researched, candid legal advice to my clients on the strength of the case against them, and all other relevant factors. I explain to my clients my opinion on whether it is best to enter a guilty plea or go to trial, and make sure they understand the relevant factors they must weigh to decide which course of action to take.

Overall, I think it is extremely important to having meaningful dialogue with clients about fundamental decisions that they must make for their cases. Defense lawyers must remember that, at the end of the day, it is the client whose life is on the line, and effective representation requires us to respect our clients’ autonomy while providing them with all relevant information and thoughtful legal advice.

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New Ninth Circuit Case Smartly Rules that Expert Profiling is Insufficient to Prove Conspiracy

Posted By admin 2018-05-14 22:15:20

As a drug crimes specialist at both the state and federal levels, I have taken issue with a trend in recent years where trial courts have permitted prosecutors to offer a police officer to provide “expert” evidence on drug courier profiles. Drug courier profile testimony is an unverified list of general behavior patterns ostensibly engaged in by typical drug traffickers. Courts have continuously held that this type of expert opinion is helpful to the jury because it is based on the observation of seemingly innocent conduct, which only a trained individual would be able to distinguish as being indicative of criminal activity. However, I view such profiling evidence as prone to discrimination and racism, and certainly incapable on its own of proving the ultimate issue of guilt. Thankfully, the Ninth Circuit agreed with this position in a new landmark ruling in the Espinoza-Valdez decision.

In my view, drug courier profile testimony is inherently prejudicial because of the potential it has for including innocent citizens as profiled drug couriers and because simply matching a defendant to a drug profile may unfairly suggest to the jury that otherwise innocuous conduct or events demonstrate criminal activity. A drug expert’s testimony cannot substitute for witnesses who actually observed or participated in the illegal activity. Accordingly, I have argued in my cases that the unfair prejudicial effect of this kind of evidence substantially outweighs any probative value it might have, and must not be admitted at trial.

The Ninth Circuit’s new ruling in Espinoza-Valdez will help to stem the ability of prosecutors to rely exclusively on “expert” profiling evidence to prove the ultimate issue in drug cases. Espinoza-Valdez is scout case where the Ninth Circuit reversed convictions of conspiracy to import and conspiracy to distribute marijuana for insufficiency of evidence. In that case, the government raided a mountaintop, and caught the defendant. He had a radio, batteries, provisions, and other evidence of drug trafficking. The defendant had been apprehended months previously backpacking. What the government lacked was evidence of with whom he conspired, the object of the conspiracy, any agreement, or evidence of what had occurred with others. The government used solely expert testimony to explain the structure of the trafficking, role, and possible amounts.

The Ninth Circuit reasoned that while it was probable that the defendant was a scout, more was needed than an “expert profiling” to find him guilty of conspiracy beyond a reasonable doubt. Accordingly, the government may no longer rely on expert testimony of drug courier profiles alone to establish guilt.

The Ninth Circuit’s reversal for insufficiency of evidence was based on reasoning that the risk of profiles are too great, especially when the actual evidence of an agreement for a conspiracy was nonexistent. The ruling in Espinoza-Valdez acknowledges that jury members are too often presented with the testimony of a case agent whose opinion entails conclusions on ultimate issues, thereby leaving them with no real fact to find due to the expert’s credibility. See United States v. Dukagjini, 326 F.3d 45, 53 (2d Cir. 2002) (noting that a case agent acting as expert has “unmerited credibility” in the eyes of jurors).

This ruling will give defense counsel a powerful tool to object when officers are introduced as experts simply to repeat the testimony of a fact witness and place the government’s seal on that fact witness’s testimony. Federal lawyers, as well as state lawyers who focus on drug crimes, should keep this valuable new case in their pockets when trying to exclude expert evidence from police officers.

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The Ninth Circuit Fails to Remedy Serious Brady and Giglio violations

Posted By admin 2018-05-02 17:22:22

The Ninth Circuit in the recent Garrison decision handed down derisory curative instructions for serious and repeated Brady and Giglio violations. There was no outrage expressed or even demand for training or reform. The panel affirmed a conviction for conspiracy to distribute controlled substances. As a lawyer who specializes in federal drug cases, I have fought hard to remedy Brady and Giglio violations, and I am troubled that the Garrison decision could drain the defense bar of litigation tools to protect important due process rights for our clients in the future.

The appellant Garrison was a physician’s assistant. His clinic used patient recruiters to bring in homeless people to prescribe OxyContin, and the clinic then relieved patients of the pills and sold the OxyContin illegally. Much of the Garrison decision decried the dangers of opioids and lectured on the responsibilities of medical professionals rather than narrowing in on the responsibilities of our government to follow due process standards, which was the subject of this appeal.

The Brady and Giglio violations in this case were serious. Garrison presented the perfect factual matrix for the panel to reprimand government due process violations. Before and during trial, the government repeatedly failed to timely disclose information to the defense, as was required by law. For example, two government cooperators helped a third witness fabricate a false medical report and submit it to a probation officer and a judge. Though the government knew, it did not disclose notes of this conduct to the defense.

In addition, a cooperating co-defendant who was given a special deal that allowed her to continue to work in the medical field was not disclosed to the defense (or court) even after the cooperator testified in direct. It is rare that Brady and Giglio violations are so clear-cut because often the secret nature of such violations prevents the defense from discovering them and litigating.

The panel agreed with Garrison that there is no dispute that the government failed to comply with Brady and Giglio requirements. However, the panel found that the trial court’s jury instruction that the government had disclosed evidence late and that the jury could draw adverse inferences from that late disclosure remedied these violations.

This ruling is disturbingly toothless, and the panel failed to take a nuanced view on whether such jury instructions were sufficient. The district court did not provide a fulsome explanation of the due process rights at stake. Merely telling a jury that it can find a defendant–who it just heard overwhelming inculpatory evidence about, and for a serious crime that is notorious in the news–not guilty due to late disclosure misses the point. Framed this way, late disclosure appears trivial, like bad housekeeping rather than bad faith law enforcement. When fundamental due process rights are at stake, juries should be shown the big picture–the importance due process rights play in protecting the integrity of our criminal justice system. The panel’s decision in Garrison similarly lacked this critical perspective.

The Garrison decision seems to tacitly condone wholesale government Brady and Giglio violations so long as the evidence gathered supports a conviction. This, of course, will only strengthen a culture of impunity felt by some prosecutors, which the Ninth Circuit warned against only five years ago in the Olsen decision, where it concluded that the “epidemic of Brady violations” was something that “only judges can put a stop to.”

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