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Posted May 15, 2012 Email This Link
Medical Research Fraud Meets the False Claims Act
Legal scrutiny of alleged research misconduct is on the rise, and this trend will be further invigorated by the First Circuit’s recent decision in United States ex rel. Jones v. Brigham and Women’s Hospital. The case arose out of claims by Dr. Kenneth James Jones against former research colleagues with whom he worked to investigate early physical manifestations of Alzheimer’s Disease. A portion of this research involved the review of MRI images to determine whether changes in the size of certain regions of a patient’s brain could be an early indicator of Alzheimer’s. To perform this experiment, two researchers manually outlined a number of brain structures on 103 study participant’s MRI scans. However, one of the researchers later determined that the outlines for some of the scans should be redone to address what he described as “anatomical anomalies.” Dr. Jones alleged that this redrawing of outlines for some of the MRI scans was not to increase accuracy, but rather was a deliberate effort to manipulate the data to create statistically significant findings.
These research activities implicated the federal False Claims Act because, according to Dr. Jones, the MRI image data was used to support a grant application that was submitted to the National Institutes of Health (“NIH”). NIH is the agency of the U. S. Department of Health and Human Services that provides funding to a broad range of scientific research. Dr. Jones asserted that the grant application violated the False Claims Act because the data supporting it constituted false or fraudulent statements made to the United States to obtain federal funds.
Dr. Jones’s case was initially dismissed by the district court on summary judgment. The district court found that the plaintiff’s claims were deficient, in part, because “expressions of opinion, scientific judgments, or statements as to conclusions about which reasonable minds may differ cannot be false.” The First Circuit agreed with this statement in principle, but held that it did not apply here because the creation of the data in question was not necessarily a matter of scientific judgment. Instead, it found that the true issue was whether the defendants had “falsified scientific data by intentionally exaggerating the re-measurements of [certain brain structures] to cause proof of a particular scientific hypothesis to emerge from the data, and whether statements made in the Application about having used blinded, reliable methods to produce those results were true.”
The First Circuit also reaffirmed its holding in United States ex rel. Hutcheson v. Blackstone Medical that whether a statement is “false” for purposes of the False Claims Act is not to be determined by examining whether the statement falls into one of three rigid categories of falsity used by other Circuits. It stated that courts should “take a broad view of what may constitute a false or fraudulent statement” to ensure that the aims of the False Claims Act are met. At the same time, it was careful to stress that False Claims Act liability is not limitless and that courts must continue to strictly enforce the Act’s materiality and scienter requirements.
As Jones shows, charges of scientific research misconduct are not being left to the scientific community to resolve. Instead, research fraud allegations can easily give rise to civil claims and could even lead to criminal charges for fraud or false statements. The First Circuit has now approved the False Claims Act as another legal tool that may be deployed against researchers suspected of having manipulated or otherwise falsified research data.
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By: Ingrid S. Martin
By: Ingrid S. Martin
Posted April 30, 2012 Email This Link
Appeals Court Can’t Punch Time Clock When Government Refuses to Do So
Every attorney appreciates a court ruling in favor of a client on grounds that the attorney never raised—or more notably, on grounds that the attorney disavowed. In a unanimous decision this week, however, the U.S. Supreme Court limited the ability of an appeals court in a federal habeas corpus case to resurrect a defense that the government had abandoned.
In Wood v. Milyard, No. 10-9995 (April 24, 2012), the Supreme Court (Ginsburg, J.) reversed a decision by the U.S. Court of Appeals for the Tenth Circuit that had affirmed denial of a habeas petition. The Supreme Court held that the Tenth Circuit erred in considering sua sponte a timeliness defense that the State of Colorado had explicitly waived.
Petitioner Patrick Wood had been convicted in 1987 for a Colorado pizza shop robbery and murder. In 2008, he filed a federal habeas petition. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides a one-year limitation for seeking federal habeas relief. For a judgment that reached finality prior to AEDPA’s effective date in 1996, that limitation expired in 1997 unless the judgment was subject to AEDPA’s tolling provision. For Wood’s judgment, which had become final in 1990, the AEDPA limitation would have expired in 1997 unless Wood had properly filed an application for state post-conviction relief before then.
Although the record on Wood’s state post-conviction relief efforts was uncertain, the State of Colorado declared in federal district court that it would “not challenge, but [was] not conceding,” the timeliness of Wood’s federal petition. The district court denied Wood’s petition without addressing its timeliness. The Tenth Circuit, however, concluded that “it had authority to raise timeliness on its own motion” and affirmed solely because the petition was untimely.
The Supreme Court held that the Tenth Circuit abused its discretion in considering the petition’s timeliness. The Court cited the principle that appellate courts generally abstain “from entertaining issues that have not been raised and preserved in the court of first instance.” The Court also cited the need for “[d]ue regard for the trial court’s processes and time investment” in habeas cases, noting that trial court decisions on substantive grounds in those cases require substantially more effort than decisions on procedural grounds. In Wood’s case, the Court explained, the State’s explicit waiver of the timeliness defense had “deliberately steered the District Court away from” timeliness “and towards the merits of Wood’s petition.” Therefore, the Court concluded, the Tenth Circuit should have decided the case on its merits.
Wood does not deny the government all defenses that it fails to raise in a habeas case. The Supreme Court explicitly distinguished between “waived” defenses (“one that a party has knowingly and intelligently relinquished”) and “forfeited” defenses (“one that a party has merely failed to preserve”), stating that both district and appellate courts “have the authority—though not the obligation—to raise a forfeited timeliness defense on their own initiative” (emphasis added). The Court cited its own habeas precedents allowing courts in “exceptional cases” and under “extraordinary circumstances” to consider an affirmative defense where that defense had been “inadvertently overlooked.” See Granberry v. Greer, 481 U.S. 129 (1987); Day v. McDonough, 547 U.S. 198 (2006). Yet by drawing a line at the government’s explicit waiver of an affirmative defense, the Wood decision sets a clear limit, at least in habeas cases, on a court’s ability to save the government from itself—a rare bit of good news for habeas petitioners.
By: Justin P. O'Brien
Posted April 27, 2012 Email This Link
Supreme Judicial Court Allows Pre-Indictment Unsealing of Search Warrant
It is a business owner’s nightmare – a knock on the front door followed by a flood of law enforcement agents who gather up boxes of business records and seize every piece of electronic storage media they can find. Search warrants can be a devastating investigative tool, and when used to examine a business’s operations, they can leave the business in shambles. As the search unfolds, the business owner calls his lawyer and demands to know what can be done to get his business records and his computers back. Can the government’s search be challenged immediately?
The Supreme Judicial Court’s ruling in New EnglandInternet Café, LLC v. Clerk of the Superior Court for Criminal Business, SJC-11103, sheds interesting light on these questions. New England Internet Café came under investigation by the Attorney General’s office for illegal gambling, and law enforcement executed search warrants at two commercial properties operated by the company. Pursuant to these warrants, police officers seized computers and records, and froze bank accounts with balances totaling approximately $109,000. New England Internet Café maintained that these actions resulted in the “indefinite shutdown” of their cafes. However, no indictments were immediately forthcoming, and the Attorney General’s Office had obtained a court order impounding the search warrant application, affidavit, and subsequent return. This left the New England Internet Café without any understanding of the basis for the criminal investigation and without the information necessary to challenge the government’s seizure of its computers, records, and assets.
New England Internet Café requested that the judge who had issued the search warrant unseal the search warrant application and affidavit. The judge denied the motion without prejudice, finding that New England Internet Café first had to initiate a civil action to obtain the relief they sought. The company then followed the procedure established by Ottaway Newspapers v. Appeals Court, and filed a civil action in Suffolk Superior Court seeking relief from the impoundment order that named the Clerk for Criminal Business and the Attorney General as defendants. The Superior Court granted the request for relief, and ordered that the search warrant materials be unsealed. The defendants appealed, but the Supreme Judicial Court upheld the pre-indictment unsealing of the materials. It explained that “the basic premise underlying the analysis of any request to impound public court documents (which the documents underlying a search warrant become once the warrant is executed and the return is filed) is the ‘general principle of publicity.’ This principle extends a presumptive right of access to all of society … and it is through this lens that judges consider all impoundment matters.” The SJC acknowledged that this right to access is not absolute and can be overridden by a showing that “good cause” exists to impound. In this case, however, the Supreme Judicial Court agreed with the Superior Court that nothing in the affidavits needed to remain secret. In addition, the Supreme Judicial Court found that the Superior Court had properly considered “the extent of the materials seized from the plaintiffs, the closure of the plaintiffs’ businesses, and the fact that nearly two and one-half months after the searches had been executed, the plaintiffs had not yet been charged with a crime.”
After New England Internet Café, a business harmed by a search warrant need not await indictment to begin a legal challenge against the search. Even before a criminal case is brought, the target of a search can bring an action in Superior Court to obtain the warrant materials and can explore whether the search can be attacked. With the warrant materials in hand, the target of the search can evaluate whether the search warrant application was adequately supported, whether the search stayed within proper limits, and whether the return of any seized materials may be warranted even before indictments issue. As the Supreme Judicial Court itself commented in New England Internet Café, “prolonged and unjustifiable delay in bringing an indictment against the target of a search, whose business must close as a result of the seizure of otherwise legally possessed property, may trigger constitutional due process concerns.”
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By: Ingrid S. Martin
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Posted April 19, 2012 Email This Link
First Circuit Slaps Down Last Ditch “HAIL MARY” Pass On Honest Services Fraud
Describing the ancient writ of error coram nobis as the criminal-law equivalent of a Hail Mary pass in American football, on April 17, 2012 the United States Court of Appeals for the First Circuit slapped down Richard George’s petition to vacate his 1995 conviction for conspiracy to commit honest services wire fraud, and in so doing shed additional light on the law of coram nobis in this circuit.
In December 1995, George pleaded guilty to a one-count information alleging that while he was employed as a state court first assistant clerk-magistrate, he handed off blank search warrants on the sly to his coconspirators who were not law enforcement officers and, consequently, had no legitimate use for them. According to his Pre-Sentence Report (“PSR”) George’s coconspirators posed as law enforcement officers and used the warrants to rip off drug dealers. There was no allegation in the information or in the PSR that George was paid to provide the warrants.
The writ of error corum nobis dates back to sixteenth century English common law, when it was used to correct technical errors in a final judgment that had been previously rendered. In current federal criminal practice, the writ exists under the All Writs Act as a remedy to correct fundamental errors of fact or law in instances where a criminal defendant is no longer in custody but still suffers significant collateral consequences from the conviction. Seizing on the Supreme Court’s recent cabining of the honest services fraud (“HSF”) statute, 18 U.S.C. §1346, in Skilling v. United States, which limited the scope of HSF schemes to those that involve bribes or kickbacks paid in return for official acts, George invoked the writ to argue that his 1995 conviction was invalid because the information to which he pleaded guilty was devoid of any bribery or kickback allegations.
In its opinion in George, the First Circuit pulled out the three-part test for invoking the writ from its play book: (1) a petitioner must explain his failure to seek earlier relief from the judgment; (2) he must show he continues to suffer significant collateral consequences; and (3) he must show that the judgment below resulted from an error of the most fundamental character. Notably, however, the Court went further to say that even if the three-part test is satisfied, it is still within the discretion of the district court to grant or deny the writ. Relying on the Supreme Court’s fifty-year-old admonition in United States v. Morgan that the writ should issue “only under circumstances compelling such action to achieve justice,” the First Circuit audibled by adding a fourth overarching requirement that a petitioner “must also show that justice demands the extraordinary balm of coram nobis relief.”
The addition is particularly notable given that George arguably met the three part test. George credibly claimed that he suffered significant collateral consequences of a felony conviction through the sacking of his state pension, and that this constituted a continuing economic harm, which at least one other Court of Appeals had found justified the writ’s invocation; that his 1995 conviction suffered from a fundamental error in that the conduct alleged, after Skilling, did not constitute a federal crime; and that he was unable to seek this relief until after the Supreme Court’s decision in Skilling. The government conceded the fundamental error and timeliness prongs of the test, and argued only that George’s loss of his pension was not the sort of harm that would justify the use of the writ.
Rather than tackle George’s claims under the three part test head on, as the district did below in denying George’s petition on the grounds that his loss of pension was not a significant collateral consequence as a matter of law, the First Circuit ran around the test and instead questioned whether George deserved the justice of coram nobis relief. The Court went to great lengths to point out that even though the information to which George pleaded guilty did not contain allegations of bribery, it was clear from the instant replay of the record, including the PSR, that George “passed out search warrants like popsicles in July to a person he knew had no legitimate use for them” and that “[c]ommon sense strongly suggests” that George would not have risked his reputation, job and liberty unless he was getting shown the money for his trouble. The Court concluded that “in this uncertain circumstance a Skilling error cannot readily be classified as an error of the most fundamental character.”
Acknowledging that there was no developed evidence that George actually received bribes or kickbacks in exchange for the search warrants, the Court nevertheless found that “common sense argues powerfully that culpable conduct likely took place.” Moreover, the Court penalized George for the “undeveloped” record below, noting that George made the strategic decision to waive indictment and immediately plead guilty to an information, and that George chose not to pursue a direct appeal or habeas review. The Court also repeatedly emphasized that George’s guilty plea raised heightened concerns both in terms of protecting the finality of judgments and in terms of determining whether, despite a technical flaw, George is “at least arguably guilty.”
In the end, the First Circuit viewed George’s underlying conduct as “brazen and reprehensible,” even if the charging instrument did not set forth an offense within the narrowed confines of the HSF statue after Skilling. The Court succinctly noted that granting George’s petition would be a misuse of the Court’s authority under the All Writs Act and a “perversion” of the writ of coram nobis. Put another way, George’s Hail Mary fell incomplete in the end zone as time expired. The Court might have simply said, “upon further review, the play stands as called.”
What remains to be seen is how a coram nobis petition seeking relief from a pre-Skilling HSF conviction after trial will fair. Stay tuned for Sawyer and Woodward.
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By: Anthony E. Fuller
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Posted March 30, 2012 Email This Link
Federal Appeals Court Puts Quarters in Plaintiff’s Meter: Clarification of Constitutional Standard Revives Parking Ticket Case
Many people have dreamed of “making a federal case” out of perceived harassment by those who issue parking tickets. Mark Geinosky of Chicago did and, following a decision this week by the U.S. Court of Appeals for the Seventh Circuit, he will get his day in court.
In Geinosky v. City of Chicago et al., No. 11-1448 (Mar. 28, 2012), the Seventh Circuit reversed dismissal of the case in which Mr. Geinosky had alleged “a disturbing pattern” in his receipt of parking tickets from the Chicago Police Department. Mr. Geinosky alleged that he had received 24 tickets in 14 months, typically delivered by mail in batches of three or four. Some tickets were issued for different violations that, if genuine, would have required that Mr. Geinosky’s car be in two places at the same time. Several were issued after he had sold his car.
Mr. Geinosky suspected the tickets resulted from a connection between police officers and his estranged wife and filed suit. His complaint alleged violation of the Equal Protection Clause of the Fourteenth Amendment, a civil conspiracy, and denial of substantive due process rights. The U.S. District Court for the Northern District of Illinois dismissed the case, holding in particular that plaintiff’s “class-of-one” equal protection claim failed because he had not “specifically identified a similarly situated individual who was treated differently.”
The Seventh Circuit acknowledged that “[a]t first blush” the plaintiff’s complaint would not seem actionable in federal court, and affirmed dismissal of plaintiff’s substantive due process claim as insufficient to “shock[] the conscience.” The court, however, reversed dismissal of the equal protection and dependent civil conspiracy claims.
The Seventh Circuit agreed with the district court about the importance of properly defining “class-of-one” equal protection claims to prevent converting all alleged torts by government officials into federal constitutional cases. Yet, the Seventh Circuit also explained that in a case like Mr. Geinosky’s, the plaintiff need not specifically identify a similarly situated individual who was treated differently. The court reasoned that Mr. Geinosky’s complaint “clearly tells a story in which Geinosky was targeted” by government officials; “[s]omewhere between the first several and the twenty-fourth bogus tickets,” the court explained, “Geinosky’s grievance rose to the level of an actionable class-of-one discrimination claim.”
The court added that Mr. Geinosky plainly could find hundreds of people “who have not received more than a dozen bogus parking tickets from the same police unit in a short time” on “any page of the Chicago phone book.” The court found that applying the “similarly situated individual” requirement in such a case thus “would not help distinguish between ordinary wrongful acts and deliberately discriminatory denials of equal protection.”
Although it arose in an unusual context, the decision pronounces an important principle. The Seventh Circuit’s refusal to “elevate form over substance” in Mr. Geinosky’s case marks a substantial distinction from the general standard for “class-of-one” equal protection claims. See, e.g., Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006) (“[p]laintiffs ... must first identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently” (original emphasis)). By eliminating in appropriate cases the hurdle of specifically identifying “similarly situated individuals,” the decision should facilitate equal protection claims by people who otherwise allege that they were clearly singled out for discrimination by government actors.
By Justin P. O'Brien
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Posted March 26, 2012 Email This Link
Dangerous Dicta: The Importance of Confidentiality in Plea Negotiations
As noted in the below post, the Supreme Court recently extended the Sixth Amendment right to effective assistance of counsel to the plea bargaining stage. While the opinions themselves are noteworthy, the dicta in Frye raises a troubling question about maintaining the confidentiality of unsuccessful plea negotiations.
Anticipating criticism about a flood of frivolous, fabricated, and belated claims of ineffective assistance during plea negotiations, the Court offered some “helpful” suggestions as to how to avoid future problems. First, the Court suggested reducing plea offers to a writing. Since plea offers involving a sentence recommendation are almost always reduced to some form of writing (as in fact happened in one of the two cases before the Court), this suggestion was not particularly helpful.
It was the Court’s second suggestion – that formal offers be made a “part of the record at any subsequent plea or proceeding or before a trial on the merits” – that is troubling. Putting unaccepted plea offers on the record carries with it a significant risk of prejudice for the defendant. The court – and the public from which the jury pool is to be drawn – may feel irritation, contempt for or even anger at a defendant who rejected what might appear to an outsider to be a reasonable settlement offer. A defendant in that position risks being “punished” by the fact finder through a conviction or a higher sentence – not for his conduct, but for his perceived unreasonableness or for “wasting” the fact finder’s time. There may also be instances in multi-defendant cases where a defendant would not want this co-defendants to know he was offered (and rejected) a plea bargain.
While unsuccessful plea offers are frequently disclosed to the judge in state court, in the federal system – where sentences typically dwarf the state’s – plea negotiations occur in confidence because the parties need to know that they can freely communicate with each other without risk of exposure. While the Court’s suggestion does not go so far as to suggest that the back and forth be made public, publicizing any “formal offer” will clearly taint the negotiating process. A defendant who knows in advance that any offers he receives will be made public will be less willing to explore negotiations in the first place. This could have a far greater chilling effect on plea negotiations than the comparatively minor risk of ineffective assistance during the negotiation process.
By: Anthony E. Fuller and Sara E. Silva
Supreme Court Extends Right to Counsel to Plea Negotiations
It is a routine scenario -- a criminal defendant is offered a plea deal calling for a certain punishment. The defendant discusses the possible plea deal with his attorney, weighing the alternatives of taking the deal or going to trial, knowing that if he loses after trial, his sentence will likely be greater than that called for in the plea offer. Defendants and defense counsel alike are well aware that good advice regarding plea offers is critical, and this past week, the United States Supreme Court agreed, issuing two 5-4 opinions that extend the Sixth Amendment right to effective assistance of counsel to the plea bargaining stage.
In Missouri v. Frye, the defendant had been charged under Missouri law for driving with a suspended license. Because he had been previously convicted of the same offense three times, he faced a felony charge carrying a four year prison term. The state prosecutor sent Frye’s attorney a letter offering to reduce the charge to a misdemeanor and to recommend a 90-day sentence; the plea offer had an expiration date. Frye’s attorney never informed him of the plea offer and the offer expired. Before his next scheduled court date, Frye was arrested for once again driving with a revoked license (it is unclear from the Court’s decision if he was ever formally charged for this arrest). Frye subsequently entered a guilty plea to the original charge and was sentenced to three years in prison.
Lafler v. Cooper involved a defendant who was charged with assault with intent to murder and various other charges stemming from his shooting of a woman. The prosecution offered to dismiss several counts and recommend a sentence of 51 to 85 months in exchange for a guilty plea. The defendant expressed a willingness to enter into the deal but ultimately rejected it on the advice of his attorney who convinced him he could not be found to have the intent to murder because he shot the victim below the waist. Lafler went to trial, was convicted and sentenced to a mandatory minimum of 185 months.
In both cases, the Court had little trouble finding that the defendants’ attorneys’ performance was deficient, and remanded the cases for a determination of whether the deficient performance resulted in prejudice. According to the Court, defendants like Frye who claim ineffective assistance where a plea offer has lapsed or been rejected because of deficient performance must demonstrate a “reasonable probability” not just that they would have taken the deal, but that “the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.” Of course, one is left to wonder how a defendant could ever demonstrate a reasonable probability that a prosecutor would not have revoked the plea deal or that a particular judge would accept it. For example, the fact that Frye was arrested after the plea was offered may make it difficult, it not impossible, for him to prove that the prosecution and the court would have accepted the deal.
For defendants who reject an offer on the basis of faulty legal advice and are thereafter convicted, like Lafler, the Court held that they must show a reasonable probability that “but for counsel’s errors he would have accepted the plea.” And even if that showing is made, says the Court, the judge has significant discretion in how to remedy the harm, including discretion to decide that the defendant should nonetheless receive the sentence handed out after trial. Rather than offer any guidance to trial courts, the Court left it to the “[p]rinciples elaborated over time in decisions of state and federal courts, and in statutes and rules” to determine which factors should bear upon the exercise of that discretion.
Justice Scalia’s dissent focuses on the fact that in both cases, the defendants got what they were entitled to under the constitution, i.e., the right to a fair trial. In the case of Lafler, he chose to exercise that right and was found guilty. He cannot now claim, says the dissent, that he should get a do-over in plea negotiations because the constitution does not give one the right to a plea bargain in the first place. Justice Scalia goes further, describing plea bargaining as “an embarrassing adjunct to our criminal justice system” and a “necessary evil.” He also expresses the concern that the Court’s rulings in Frye and Lafler will create a “whole new field of constitutionalized criminal procedure” known as “plea bargaining law.”
However, it not at all clear what kind of impact these two cases will have going forward given both the high prejudice hurdle and the broad judicial discretion as to the remedy. Plea agreements are a crucial part of our criminal justice system. There are “good” deals and “bad” deals for defendants and prosecutors depending on one’s perspective, but a sense of fundamental fairness tells us that a criminal defendant should not be stuck with a bad result solely because his lawyer was constitutionally ineffective. Unfortunately, although the decisions in Lafler and Frye demonstrate that the majority of the Court agrees with that in theory, they are not a “model of clarity” as to how a defendant in that situation can get relief as a practical matter.
By: Anthony E. Fuller and Sara E. Silva
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Posted January 24, 2012 Email This Link
United States v. Jones: Exposing the Struggle for Privacy in a Digital World?
Today, the Supreme Court unanimously held in United States v. Jones that installing a GPS on a vehicle belonging to the target of a police investigation and thereby monitoring the target’s movements constitutes a search within the meaning of the Fourth Amendment. While the holding itself is important, the real meat for practitioners lies in the various opinions of the Court, each of which exposes the doctrinal flaws of historical Fourth Amendment jurisprudence when applied to the computer age.
The lower courts in Jones approached the Fourth Amendment issue with the now-standard question: did the defendant have a subjective expectation of privacy in the movements of his vehicle and, if so, is that an expectation that society would be prepared to accept as reasonable? The district court said no, and the D.C. Circuit said yes given the totality of the movements at issue.
The majority opinion in Jones, drafted by Justice Scalia – joined by Chief Justice Roberts and Justices Kennedy, Thomas and Sotomayor – avoided having to answer that question altogether. Instead, the majority reasoned that by placing the GPS unit on the car without permission, “[t]he Government physically occupied private property for the purpose of obtaining information,” and that this “physical intrusion” alone was sufficient to trigger Fourth Amendment protections. The majority seemed to acknowledge that the “reasonable expectation of privacy” test has been the cornerstone of Fourth Amendment jurisprudence for the past 45 years, but reasoned that the test “did not narrow the Fourth Amendment’s scope” to mere invasions of privacy. Rather, the majority asserted that the Fourth Amendment has always protected against trespasses of the areas identified in the Constitution (“persons, houses, papers and effects”) when done to obtain information. The “reasonable expectation of privacy” test expanded those trespass-based protections but did not supplant them.
Justice Alito concurred in the judgment only. His opinion – joined by Justices Ginsburg, Breyer and Kagan – criticized the majority’s opinion as being in “[d]isharmony with a substantial body of existing case law.” It did not, however, offer any workable solution to the question of how to find a reasonable expectation of privacy in a world where privacy is rapidly diminishing. Rather, Justice Alito (and the Justices joining him) would instruct courts to determine on an ad hoc basis when governmental monitoring has gone on for “too long,” while asking Congress to provide a statutory solution to this constitutional problem.
Only Justice Sotomayor, in a thoughtful concurrence, attempted to square Fourth Amendment jurisprudence – and the interests it was ostensibly developed to protect – with modern life. She agreed with Justice Scalia’s majority that the “reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it.” She also agreed that situations involving governmental monitoring without a physical trespass would still remain subject to the Katz analysis. But she would dig deeper than Justice Alito’s amorphous “too long” approach -- looking beyond the length of time of the surveillance to analyze the information obtained, the extent to which the government could keep and manipulate that information, and the existence of any checks on the government’s conduct.
Unlike the other Justices, Justice Sotomayor candidly acknowledges that the reasonable expectation of privacy test is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” And unlike the other Justices, she appears ready to revisit standard Fourth Amendment jurisprudence in order to preserve the interests it was designed to protect. Questioning the doctrinal push to treat “secrecy as a prerequisite for privacy,” Justice Sotomayor “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”
After Jones, practitioners whose clients suffer actual trespasses have an easier avenue for establishing a Fourth Amendment violation. Those who do not – such as those with cases involving warrantless monitoring of closed-circuit television videos, automatic toll-collection records, roadside assistance devices, or wireless phone tracking devices – should follow Justice Sotomayor’s take on the standard Katz analysis and ask the court to determine “whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” Practitioners may also want go beyond that and begin questioning whether the law can accommodate the practical need to participate in digital information-sharing without requiring us to succumb to an Orwellian world.
By Sara E. Silva
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Posted January 20, 2012 Email This Link
Can You Have Your Cake and Eat It, Too?
When representing a defendant pleading guilty to pending criminal charges, a defense attorney often has to advise on a difficult choice: should you accept the less than ideal offer on the table from the government, or should you go unagreed gambling that the judge will impose a more favorable sentence? What if in exchange for agreement, the Commonwealth has offered to drop or reduce some charges?
Now the Massachusetts Supreme Judicial Court (“SJC”) has held that a defendant who takes the deal on the table can still get a better outcome from the judge, and at the same time can still reap the benefits of the agreement reached with the government. In Commonwealth v. Rodriguez, SJC-10825, the SJC found that when the prosecution obtains a defendant’s agreement to a sentencing recommendation, it does so “with the specific understanding that the recommendation shall not be binding upon the court.” The SJC held that the judge always has the power to impose a lesser sentence, without vitiating the plea agreement, if “the agreed recommendation was more severe than justice permitted.” The Commonwealth is still bound by its part of the bargain, including any charging concessions it made to obtain the defense’s agreement to the Commonwealth’s sentencing recommendation.
It is worth examining the facts that led to this powerful holding. Mr. Rodriguez was charged in the Boston Municipal Court with two counts of possession with intent to distribute. Under the plea agreement, the Commonwealth agreed not to seek indictments in Superior Court on these charges, and the defendant agreed to two concurrent sentences of 2.5 years in jail. At the change of plea hearing, the Court was under the impression that Mr. Rodriguez had been in possession of a Class A substance, but that the prosecutor had agreed to reduce the charge to possession of a Class B substance with intent to distribute. After initially imposing the agreed upon sentence, the judge – on his own motion – ordered a hearing under Massachusetts Criminal Rule of Procedure 29(a) to consider whether the sentences should be revised and revoked. At the Rule 29 hearing, the Court learned that drug certification had demonstrated that what the Commonwealth initially thought was a Class A substance was, in fact, a Class B substance. In other words, the prosecution had not done the defendant a good turn by charging possession of Class B with intent to distribute, it had simply conformed the charge to the facts. The judge also learned that the defendant had long-standing, serious mental health issues, and that he had become addicted to oxycodone after taking it legitimately for a work place injury.
This case raises several interesting questions. First, what happened to provoke the judge to order a Rule 29 hearing? Certainly this opinion urges defense attorneys to make no less an impassioned presentation to a judge when a sentence is agreed upon. Attorneys should consider presenting all mitigating factors to a judge at a change of plea hearing, whether the sentence recommendation is joint or disparate. Second, what counter measures will this opinion provoke by prosecutors when striking plea deals, and what changes in the criminal rules could result? In their concurrence, Justices Botsford and Cordy call on the court’s advisory committee on the rules of criminal procedure to examine whether the criminal rules need amending in response to this holding. Finally, will prosecutors now add a provision to their plea deals that if the Court does not accept the parties’ bargain, they are no longer bound to their concessions? If this is possible, then the SJC may have done more harm than good for criminal defendants.
By Ingrid Martin
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Posted November 23, 2011 Email This Link
Unprecedented Sentencing under the FDCA
On November 21, 2011, the U.S. District Court for the Eastern District of Pennsylvania sentenced two former Synthes North America executives to unprecedented nine month prison terms for misdemeanor offenses under the Food, Drug, & Cosmetic Act (FDCA) as a result of the company’s promotion and clinical testing of Norian XR bone cement. Three patients died during the testing. The prosecution conceded that it cannot prove that the bone cement was the cause of death. This is a notable case for a number of reasons, including, most obviously, the sentence imposed. We will continue to update the story once the court’s opinion or sentencing transcript becomes available.
Four former executives of Synthes, former company president Michael Huggins, former Spine Division President Thomas Higgins, former VP of Operations Richard Bohner, and director of regulatory and clinical affairs John Walsh, Esq., each pled guilty to a single count misdemeanor violation of the FDCA under the “responsible corporate officer” (RCO) doctrine (also known as the Park doctrine). In court, each defendant admitted that they were responsible corporate officers during the period that the offense conduct occurred. They denied personal knowledge or involvement in the wrongdoing. Huggins and Higgins were given record nine-month prison terms, while Walsh was given a sentence of five months in prison. (The fourth executive, Richard Bohner’s sentencing, originally set of November 21, has been adjourned due to the illness of his attorney.)
At sentencing, the United States contended that Huggins and Higgins should be given the maximum sentence of one year imprisonment, well above the 0-6 applicable guideline sentencing range. The recommendation was based on the claim that the judge should find that “not only was this defendant aware of the rogue clinical trials, but he authorized and participated in them.” (Govt. Sent. Mem. for Michael D. Huggins at 2.). The defendants argued that no prison time was appropriate because they were merely “responsible corporate officers” during the time of the offense. While the District Court’s sentencing opinion has not been published, the Philadelphia Inquirer reports that the Judge stated found the prosecution’s argument persuasive stating, "you are being punished for the decisions you made and personally participated in."
The Synthes case marks the second time a prison sentence has been imposed on an individual for a misdemeanor RCO violation of the FDCA. The first decision, United States v. Hermelin, was handed down in March of this year. In Hermelin, the former CEO of St. Louis-based KV Pharmaceutical Co. was sentenced to 30 days in prison for labeling morphine pills as 30-milligram and 60-milligram strength when they actually contained slightly more of the active ingredient. In addition, the foreign-born CEO was given a lifetime ban from doing business with the United States. Following on the heels of March’s Hermelin decision, the stiff prison terms imposed here appear to demonstrate that federal prosecutors are following through on their goal of increasing scrutiny and punishment of individual corporate defendants, including, in Mr. Walsh’s case, regulatory counsel. While historically the government’s goals seemed to be primarily to impose monetary sanctions and various restrictions on companies, the government is raising the stakes for corporate executives by taking this approach. It will be challenging to navigate these new waters when the legal interests of the corporations and its “controlling officers” could fall out of alignment.
By Ingrid S. Martin, Tom Reece and Nelson Rutrick
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Posted on October 20, 2011 Email This Link
Health Care Fraud: It's Not Just for Feds Anymore
USA Today published an article this morning about the increasing focus and funding of state Medicaid Fraud Control Units (MFCUs) on recovering damages for Medicaid fraud. In Massachusetts, where the healthcare industry comprises a huge part of the State's economy, the Attorney General announced on Tuesday that the Commonwealth had recovered "$69 million in misspent MassHealth funds" and that the office would be ramping up its efforts in the months to come. We have noticed this increased and aggressive enforcement activity in our practice, and are now representing multiple clients facing state criminal charges based on their Medicaid billings. In addition, our clients have been required to respond to subpoenas and document requests from various state Attorneys General offices around the United States. This trend towards criminal investigation and prosecution of Medicaid fraud by the states likely will continue to grow. Earlier this month the federal Department of Health and Human Services issued proposed revisions of the performance standards for MFCUs. MFCUs receive a significant portion of their budgets from the federal government. These performance standards, if adopted, will increase pressure on MFCUs to bring prosecutions and demand substantial settlements. Experience handling federal health care investigations, along with familiarity with the state court system and the Attorneys General offices, will be critical to successfully defending healthcare clients facing these Medicaid law enforcement efforts.
By Ingrid S. Martin and Tom Reece
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Posted on October 17, 2011 Email This Link
Blueford v. Arkansas
Last week the Supreme Court granted cert in Blueford v. Arkansas to decide whether, if a jury deadlocks on a lesser-included offense but announces it has voted against guilt on the greater offense, the Double Jeopardy Clause bars re-prosecution of the greater offense.
Alex Blueford was charged with the murder of his live-in girlfriend’s 20-month old son. The defense presented expert evidence at trial that the child’s injuries were consistent with an accidental death. The trial court charged the jury to consider capital murder and three lesser-included offenses: first-degree murder, manslaughter, and negligent homicide. The court also instructed the jury to consider the types of offenses one at a time, starting with capital murder, stressing that before the jury could consider the lesser included offenses, it must first vote unanimously on the greater offenses. After deliberations, the jury announced that they were unanimously against conviction for capital and first degree murder but were deadlocked on manslaughter, and the court declared a mistrial.
At the second trial, over Mr. Blueford’s objection, the court again charged the jury to consider capital murder and its lesser included offenses, and Mr. Blueford was convicted of capital murder. Mr. Blueford appealed, arguing that permitting a second jury to consider capital murder and first degree murder violated the Double Jeopardy clause because the first jury had unambiguously acquitted him of both. The Supreme Court of Arkansas affirmed the conviction, finding that the conversation between the judge and the first jury’s foreperson – in which the foreperson informed the court that the jury was “unanimous against” both capital murder and first degree murder – was not tantamount to an acquittal. The court also endorsed the “majority view” that if a single charge includes multiple degrees of offenses, the trial court cannot enter a partial verdict.
The Supreme Court’s decision in Blueford may well have implications for Massachusetts practitioners. In Commonwealth v. Roth, the Supreme Judicial Court held that “judges should not initiate any inquiry into partial verdicts premised on lesser included offenses within a single complaint or count of an indictment” because “the risks of juror coercion are too high, and the reliability of any such partial verdict is too low.” If the Supreme Court decides that the Double Jeopardy clause bars reconsideration of a jury’s determination as to greater offenses, however, that may open the door to arguments that defendants are constitutionally entitled to request partial verdicts, thereby implicitly overruling Roth. Until the Supreme Court weighs in, counsel should consider preserving the argument by requesting partial verdicts in cases involving lesser included offenses and objecting to any failure to so charge the jury. In order to address Roth’s policy-based concerns about partial verdicts, counsel should also consider suggesting the orderly deliberation procedure used in Blueford as opposed to the creative but necessarily ad hoc procedure that the SJC rejected in Roth.
By Julia W. Monack
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Posted on October 7, 2011 Email This Link
A One-Man Constitutional Textbook
Defense counsel are always focused on limiting government enforcement to its proper bounds, while ensuring that government does everything in its power to protect our clients’ rights.
The Rev. Fred Shuttlesworth, who died this week at age 89, served both of these causes—on the streets of Birmingham, Alabama, from jail cells, and before the Supreme Court of the United States.
Rev. Shuttlesworth, whom Dr. Martin Luther King, Jr. called “the most courageous civil rights fighter in the South,” was one of the earliest founders and icons of the Civil Rights Movement. As one commentator noted:
Before Rosa Parks refused to give up a bus seat in Montgomery, before four little girls were killed by a bomb at their church in Birmingham, before ‘Bloody Sunday’ in Selma and even before the Rev. Dr. Martin Luther King Jr. became a household name, there was the Rev. Fred Shuttlesworth.
For years, Rev. Shuttlesworth risked his life to effect equality under the law. He organized and led countless non-violent confrontations with injustice while repeatedly enduring incarceration, beatings, and bombings. “We’re determined to either kill segregation or be killed by it,” he declared.
Rev. Shuttlesworth also holds a significant place in American legal history. He was one of the defendants in Sullivan v. New York Times, 376 U.S. 254 (1964), the landmark case in which the Supreme Court established the “actual malice” standard for proof of libel against a public official. Rev. Shuttlesworth had been held liable for defamation as a signatory on an advertisement in the Times that criticized the Montgomery, Alabama police. The Court (Brennan, J.) reversed the Alabama Supreme Court and held that “the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments.”
Sullivan was hardly Rev. Shuttlesworth’s sole encounter with the Supreme Court. In a 1965 article entitled “Litigation: The Champion,” Time Magazine reported that Rev. Shuttlesworth’s “belligerence” in fighting the legal battles in which his advocacy immersed him “has already taken him to the U.S. Supreme Court eight times—which makes him the most litigious individual in the court’s 176-year history.” Earlier that week, in Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965), the Court had reversed Rev. Shuttlesworth’s conviction for loitering (which had carried a sentence of 241 days at hard labor) – the fifth reversal for Rev. Shuttlesworth, who had been arrested 22 times.
Time stated that Rev. Shuttlesworth’s record in the courts “all but makes him a one-man constitutional textbook.” Even if that record alone did not, his life as a whole surely did.
By Justin P. O'Brien
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Posted on September 16, 2011 Email This Link
Coming Soon: Upcoming Amendments to Sentencing Guidelines
On November 1, 2011, the amendments to the Sentencing Guidelines that were proposed by the Sentencing Commission during the last amendment cycle will be incorporated into the new Guidelines Manual. Of particular interest to white collar practitioners are several changes to §2B1.1 designed to target defendants convicted of a federal health care offense (defined by reference to 18 U.S.C. § 24).
First, under new §2B1.1(b)(8), the Guidelines will recommend an offense level increase of 2 levels if the loss to a government health care program was more than $1,000,000; an increase of 3 levels if the loss was more than $7,000,000, and an increase of 4 levels if the loss was more than $20,000,000. This change will increase the recommended ceiling by 12 months for defendants with “losses” greater than $1 million, 30 months for defendants with “losses” greater than $7 million, and a whopping 54 months for defendants with “losses” greater than $20 million.
Second, under new § 2B1.1 (n. 3(F)(viii)), “the aggregate dollar amount of fraudulent bills submitted to the Government health care program shall constitute prima facie evidence of the amount of the intended loss . . .” (emphasis added). This policy change is disappointing given that, in many health care prosecutions, the charges have nothing to do with whether beneficiaries received medically necessary treatments, but instead involve non-compliance with labyrinthian regulatory requirements.
The good news is that these amendments are susceptible to challenge under Kimbrough because they are clearly policy decisions – and congressional ones at that. As the Commission itself wrote in its Reason for Amendments, the proposals “respond[] to the directive in section 10606(a)(2) of the Patient Protection and Affordable Care Act of 2010, Pub. L. 111-148.” In other words, the amendments “do not exemplify the Commission’s exercise of its characteristic institutional role,” Kimbrough v. United States, 552 U.S. 85, 109 (2007), because in adopting the amendments, the Commission “did not take into account of empirical data and national experience,” id., but instead merely followed Congress’s command.
Other proposed guideline changes signal that the Commission disagrees with Congress’s policy. For example, while Congress directed that the offense level adjustments at new §2B1.1(b)(8) apply to losses “of not less than” the specified amounts, the Commission applied them to losses “more than” that amount. It’s a small change, but given that the Commission has historically taken every opportunity to increase sentences at Congress’s behest, its refusal to follow Congress’s direction to the letter here is notable. Similarly, even though it adopted Congress’s language with regard to the new “intended loss” presumption, the Commission expressly notes that ”the government’s proof of intended loss may be rebutted by the defendant” (emphasis added). Most significantly, the Commission amended the commentary to §3B1.2 to make clear that the mitigating role adjustment applies to defendants who are accountable under the relevant conduct rules for a loss amount “that greatly exceeds the defendant’s personal gain from a fraud offense and who had limited knowledge of the scope of the scheme.” What type of defendant did the Commission have in mind? It gave as an example “a defendant in a health care fraud scheme, whose role in the scheme was limited to serving as a nominee owner and who received little personal gain relative to the loss amount” (emphasis added).
The Commission’s statistics empirically show that courts think sentences under §2B1.1 are already too high – particularly in higher loss categories. Add to that the weight of scholarly research criticizing the policy decisions already inherent in §2B1.1, see, e.g., Allan Ellis, John R. Steer, and Mark H. Allenbaugh, At a “Loss” for Justice: Federal Sentencing for Economic Offenses, 25 Crim. Just. 35 (Winter 2011), and the Commission’s subtle yet palpable disagreement with Congress’s directives in the health care fraud arena, and we have a situation where sentencing courts can – and should – reject §2B1.1 on the ground that it “yields a sentence greater than necessary to achieve §3553(a)’s purposes” in every case. Kimbrough, 552 U.S. at 110.
By Sara E. Silva
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Posted on August 3, 2011 Email This Link
Tenth Circuit: The Guidelines Were Not Written on “Opposite Day”
On August 1, 2011, the Tenth Circuit issued United States v. Manatau, a neat little sentencing case defining “intended loss” for purposes of the sentencing guidelines. Mr. Manatau pleaded guilty to stealing, forging and cashing several blank checks issued by credit card companies for their customers’ use. Although the actual loss was only $1,840, the government claimed that Mr. Manatau’s “intended loss” under 2B1.1 was greater than $60,000 based on the credit limits for the accounts on which the checks were written. The district court agreed with the government, even though there was no proof that Mr. Manatau intended to cause that amount of loss or that he was even aware of some of the credit limits. The Tenth Circuit reversed, defining “intended loss” under 2B1.1 to mean “a loss the defendant purposely sought to inflict,” and holding that “the mens rea standard for ‘intended losses’ is just what the plain language and structure of the guidelines suggest – requiring an inquiry into the defendant’s purpose.”
Manatau is helpful in this circuit because the Tenth Circuit squared its holding with the First Circuit’s decision in United States v. McCoy. The Tenth Circuit had no quibble with McCoy’s holding that “intended loss” can be shown by looking to what loss was “expected” because “a person is presumed to have intended the natural and probable consequences of his or her actions.” But, continued the Tenth Circuit, allowing the factfinder to infer intent by looking to the “natural and probable consequences” of a defendant’s action is a far cry from saying that the government need not prove intent at all. That is an important distinction – and one that all First Circuit practitioners should be drawing.
Manatau is notable for another reason as well. In rejecting the government’s suggestion to define “intended loss” as including any loss that was “both possible and potentially contemplated” by the defendant’s scheme, the court stated “whatever the term ‘intent’ might mean, we have never heard of a definition that would allow us to say that an individual’s intentions include things he never contemplated – except perhaps in an Opposite Day game.” According to my research, “Opposite Day” is “[a] day where everything you say means the opposite of what it normally would.” See Urban Dictionary, http://www.urbandictionary.com/define.php?term=Opposite%20Day. Anyone who has practiced under the guidelines should be slightly surprised and very relieved to learn that guideline sentences should not follow Opposite Day rules. So when a guideline fails to “assure the ends of justice” by recommending an “appropriate sentence,” or is not based on “an empirical approach that uses data estimating the [pre-Guidelines] sentencing system as a starting point,” or will not reduce crime or resolve sentencing disparities, see U.S.S.G. § 1A1.1, p.s., practitioners should argue that the guideline’s sentence recommendation must be ignored. Unless, of course, it is Opposite Day.
By Sara E. Silva
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Posted on August 2, 2011 Email This Link
A Supreme Irony
In some ways, Luis Melendez-Diaz is one of the luckiest guys around. After being convicted of a routine drug offense in Massachusetts, the U.S. Supreme Court agreed to hear his argument that allowing the government to introduce a certificate of chemical analysis reporting that the substance seized from him was cocaine violated his Confrontation Clause rights. That decision catapulted Mr. Melendez-Diaz into the rare echelon of state criminal defendants whose cases receive Supreme Court review. According to scotusblog’s Stat Pak, available at http://www.scotusblog.com/2010/07/super-stat-pack-ot09-available/, in its 2009 term, the Court granted cert in only eight state court cases – out of the over 10,000 cert petitions that are filed every term. One of those was Mr. Melendez-Diaz’s.
His luck continued to hold when the U.S. Supreme Court agreed with Mr. Melendez-Diaz that his Confrontation Clause rights had been violated and remanded the case back to the Appeals Court which later decided that the introduction of the certificates was not harmless and, on Feb. 3, 2010, vacated Mr. Melendez-Diaz’s conviction.
And that’s about the time Mr. Melendez-Diaz’s luck ran out. When the Appeals Court vacated his conviction, Mr. Melendez-Diaz was – ironically – in prison as the result of separate drug-related convictions arising from events that took place after the conduct that formed the basis of his earlier case. Even more ironic, his trial on the second convictions had the exact same defect as the first – the government had introduced certificates of chemical analysis to prove that substances seized from him were cocaine and heroin. And Mr. Melendez-Diaz had raised the exact same objection on appeal – that the introduction of those certificates violated the Confrontation Clause. But this case, not having received the Supreme Court’s attention, ran through the appeals process faster and his later convictions were finalized before the Supreme Court ruled in his favor in the earlier case.
Undeterred, Mr. Melendez-Diaz sought a new trial, arguing that his win in the first case meant that his convictions in the second case should be thrown out too. But this time, he lost. The Supreme Judicial Court of Massachusetts unanimously held last week that the Supreme Court’s Melendez-Diaz decision constituted a “new rule” within the meaning of Teague v. Lane. The SJC reasoned that even though the majority opinion in Melendez-Diaz described its holding as “little more than the application” of the Court’s decision in Crawford v. Washington, drug certificates were broadly considered admissible under the legal landscape at the time. Because the Melendez-Diaz decision “overruled a long-standing precedent relied on in more than thirty-five States (and throughout the Federal courts),” the SJC reasoned that it must be a “new rule,” and thus that it does not apply retroactively to defendants whose convictions have been deemed final at the time of the decision.
Regardless of the merits of the SJC’s legal analysis, the ironic result is that Mr. Melendez-Diaz cannot rely on Melendez-Diaz to vacate his convictions, even though they indisputably share the same constitutional defect (not to mention the same defendant). It is possible, of course, that the Supreme Court could decide to weigh in on the retroactivity of Melendez-Diaz, in which case Mr. Melendez-Diaz might still have some hope of receiving the full practical benefit of his earlier victory. As it is, perhaps he can take some comfort in knowing that the criminal trial process – at least going forward – will be a little bit fairer throughout the nation and in this Commonwealth.
By Sara E. Silva
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Posted on July 22, 2011 Email This Link
Commonwealth v. Shea: The SJC Weighs In On Writing It Down
When a criminal defense attorney stands before a jury trying to shield her client from the government’s attack, the nagging question is, “what is going on in the jurors’ minds?” Do they understand the evidence? Is there an unknown and lingering bias that will cause them to take an immediate dislike to the defendant? In its recent decision in Commonwealth v. Shea, the SJC has clarified the rules on two critical tools in an attorney’s arsenal to ensure that unbiased jurors are selected and that once seated in the jury box, jurors are absorbing key evidence.
First, Shea addressed how to handle questioning prospective jurors about bias. During jury selection, the judge agreed to ask whether the defendant’s race would affect the potential jurors’ ability to render a fair and impartial verdict, and whether they believed that African-Americans had a tendency to commit crimes more than persons of other races. However, the judge did not want the jurors to have to raise their hands in order to answer “yes” to these questions. Ultimately, the judge asked the jurors some questions as a group and told them to make a mental note of “yes” answers, and then individually asked the racial bias questions at sidebar. Although not reversible error, the SJC disapproved of this approach. It held that a judge can properly ask sensitive questions at sidebar, but as to questions posed to the group as a whole, judges should ask potential jurors to raise their hands to signal “yes” so that the clerk can make a note and ensure that responses are not forgotten.
Second, Shea urged Massachusetts courts to embrace the practice of permitting jurors to take written notes during trials. The SJC discarded the old view that allowing jurors to take notes would give undue influence to the jurors who had written notes or that it would cause distraction. Instead, it acknowledged that empirical studies and judicial experience have demonstrated that “notetaking led to increased attention, fewer requests for read-back of testimony during deliberations” and also enhanced “juror morale and satisfaction.” Accordingly, the SJC ordered the court’s standing advisory committees on the rules of civil and criminal procedure to examine whether the rules should require that jurors should be permitted to take notes during some or all trials.
In both of these rulings, the SJC has recognized the danger of asking juries to rely on their memories alone. The theme that runs throughout Shea is that to achieve accuracy and fairness at trial, it is best to capture critical information in a written note rather than merely a “mental note.” Practitioners should keep Shea in mind when preparing arguments and chalks for trial. Critical evidence should be provided in such a way that jurors can easily copy it down and carry it with them into the deliberation room.
By Ingrid S. Martin
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Posted on July 14, 2011 Email This Link
Bravo to Judge Walton!
It is never easy to preside over a high-profile case, and it is never easy to declare a mistrial in a criminal prosecution. Today, Judge Reggie Walton (US District Court, DC District) did both and, in the course, did a real service to the interests of justice.
As many are aware, Judge Walton has been presiding over Roger Clemens’s trial on perjury, obstruction and false statement charges. Earlier in the case, he properly ruled that the government cannot present evidence intended to bolster the credibility of its own witnesses. Today, despite Judge Walton’s ruling, the government allowed the jury to see written comments prepared by U.S. Rep. Elijiah Cummings during a 2008 House hearing, in which Rep. Cummings discussed and appeared to credit hearsay statements made by the wife of one of the government’s star witnesses that contradicted Clemens’s congressional testimony. Judge Walton declared a mistrial, noting that he could not in good faith place Clemens’s liberty at risk when the government should never have exposed the jury to such blatantly inadmissible and improper evidence.
Judge Walton has long been admired for his principled stands – particularly those related to the unjustifiably harsh sentencing disparity between crack and powder cocaine. Today, he deserves our deep respect for recognizing once again that the value of any criminal penalty depends upon our faith that it was justly imposed. When the government fails to abide by basic rules of fairness at trial, the correct response is to end the trial. That is exactly what Judge Walton did, and he is to be commended for his just decision.
By Sara E. Silva
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Posted on July 13, 2011 Email This Link
Yesterday the Supreme Judicial Court reversed convictions in two cases showing that on a well-built factual record, a criminal defendant can prevail on appeal despite challenging standards of review. The first of these decisions, Commonwealth v. Santos, is a reminder that the hearsay rules continue to be a stumbling block at trial. In Santos, the Commonwealth charged the defendants with disturbing the peace, resisting arrest, and A&B on a police officer. The defense tried to show that it was the police who had instigated the fracas. To that end, the defense sought to admit witness testimony that police officers had shouted statements like, “Get down here and fight us like men,” and “Man up and get down here,” and that they had hurled racial epithets and other insults at the defendants. The trial court excluded these statements as hearsay. This was error – the defense was not trying to admit these as statements of truth. Despite the ruling, the defense doggedly attempted to have witnesses attest to what the police officers had said, thereby building a record of wrongful exclusion by the trial court.
On appeal, the defense in Santos argued that it was constitutional error not to admit the police’s taunts and insults. The SJC disagreed, noting that erroneous evidentiary rulings do not rise to the level of constitutional error “unless they essentially effected the exclusion of an entire defense.” Nevertheless, it found that exclusion of the statements constituted prejudicial error because testimony about the police’s statements by two witnesses “who had nothing at stake in the case” could have had more than a slight effect on the jury. Key to the Court’s ruling were the numerous orders excluding the proffered testimony and the fact that the credibility of the testifying defendant’s version of events was central to the defense.
In the second case, Commonwealth v. Rivera, the SJC reversed a jury’s finding that the defendant was guilty of attempting to kidnap an eleven-year-old boy. The evidence at trial showed that the defendant approached the child in a car, that the boy then heard “someone” tell him to “get in the car,” and the boy had refused. A witness called the police and the defendant was arrested. When questioned, the defendant admitted that he had wanted the boy to go home with him and to listen to music. The SJC found that there was insufficient evidence that the defendant intended to “secretly confine” the boy because the defendant had done no more than ask the boy to get into the car. The boy’s equivocal testimony that the defendant “may have” followed him was not enough to overcome this defect. Moreover, the defendant’s statement that he wanted to listen to music with the boy was insufficient to support an inference of specific intent to isolate or insulate the boy from meaningful contact with the public. The SJC therefore reversed the conviction despite having applied the rigorous “sufficiency of the evidence” standard that allows reversal only when all of the evidence, viewed in the light most favorable to the prosecution, is insufficient for a reasonable person to find the defendant guilty.
Both of these cases remind criminal defense attorneys that in the heat of trial, it is important to keep an eye on a possible appeal. Objections to adverse rulings must be made clearly and on the record, and a defense attorney must build an evidentiary record that will be compelling in a dry transcript of the proceedings. Encouragingly, both of these decisions show that the SJC is willing to dig back into the facts and wrestle with challenging evidentiary issues such as the potential effect of witness testimony and specific intent if the record makes such a review possible.
By Ingrid S. Martin
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Posted on July 6, 2011 Email This Link Email This Link
The October 2012 Term: Bending – or Breaking – the Confrontation Clause?
In the October 2012 term, the Supreme Court will once again examine the parameters of the Confrontation Clause as it relates to forensic lab reports. Last month, a splintered Court issued Bullcoming v. New Mexico, which held that a criminal defendant has a constitutional right to confront the analyst who actually prepared the forensic report being introduced against her or him, as opposed to an analyst who could testify about the lab’s protocols generally but did not personally have anything to do with the test at issue. A few days later, the Court granted cert in Williams v. Illinois to determine whether the results of forensic testing can be introduced through expert testimony as a “fact” or data underlying the expert’s opinion, even when the report itself would otherwise be inadmissible.
In Williams, the Illinois Supreme Court affirmed the introduction of forensic DNA test results through the testimony of an expert prosecution witness who did not conduct the DNA testing and had no personal knowledge of the procedures and methodologies used during the testing. Distinguishing Melendez-Diaz v. Massachusetts, which held that the Confrontation Clause requires live testimony of a competent witness before forensic lab reports created specifically for use in a criminal prosecution can be introduced into evidence, the Illinois court reasoned that the DNA test results had been introduced merely to explain the expert’s opinion, and not for their truth. The trick, of course, is that the expert’s “opinion” was that the DNA profile established by the DNA test statistically matched the defendant – what some might call an evidentiary Catch-22.
The cert grant in Williams is potentially ominous. The Court’s recent Confrontation Clause cases have carried with them a perceptible fear of “too much justice.” Bullcoming, for example, had only Justices Ginsburg and Scalia agreeing that “unbending application” of the Confrontation Clause to forensic evidence does not “impose an undue burden on the prosecution.” Justices Thomas, Sotomayor and Kagan opted out of that portion of the majority opinion, with Justice Sotomayor writing separately to “emphasize” Bullcoming’s limited reach. Indeed, Justice Sotomayor specifically “highlight[ed] some of the factual circumstances that this case does not present. . . . [T]his is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence” – precisely the issue that the Court will address in Williams.
If Justice Sotomayor joins with Chief Justice Roberts and Justices Kennedy, Breyer and Alito to create a new majority in Williams, the ironic result will be that the government can get otherwise inadmissible forensic test results into evidence by introducing them through less knowledgeable (and hence less reliable) witnesses. In other words, a decision in Williams that “bends” strict application of the Confrontation Clause to expert testimony may very well break the purpose for the Clause’s existence. Let us hope that the Court is as concerned with too little justice in criminal cases as it is with making the government have to work hard to obtain convictions.
By Sara E. Silva
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Posted on June 28, 2011 Email This Link
In its last day of the October 2011 term, the Supreme Court granted cert in 11 cases – including three cases relating to government enforcement and non-capital criminal defense issues.
National Meat Assoc. v. Harris
First, in National Meat Assoc. v. Harris, the Supreme Court will revisit federalism concerns when it reviews the Ninth Circuit’s decision that a 2008 California law criminalizing the buying, selling, receiving processing, butchering or holding of a nonambulatory animal is not preempted either by the Federal Meat Inspection Act’s express preemption provision or its requirement that animals which are or become nonambulatory on federally inspected premises must be separated and held for observation and further disease inspection.
Messerschmidt v. Millender
The Court will also review a second Ninth Circuit decision on the availability of qualified immunity in the context of an illegal search based on a blatantly insufficient warrant. In Messerschmidt v. Millender, although police had probable cause to believe the target of the search possessed a specific firearm, they had no basis to believe that he had other firearms or that his alleged conduct (domestic violence) was at all gang related. Nonetheless, the warrant allowed police to search for any firearm or firearm-related paraphernalia and any “evidence of gang activity,” including writings, photographs, and personal items. The Ninth Circuit affirmed the district court’s decision that qualified immunity did not bar the plaintiffs’ suit because the search warrant was so lacking in indicia of probable cause as to render official belief in its existence unreasonable. Although styled as a § 1983 civil rights case, Messerschmidt allows the Court one more opportunity to narrow Fourth Amendment protections, and should be closely watched by criminal defense practitioners.
United States v. Jones
And speaking of the Fourth Amendment, in United States v. Jones, the Court will review a decision by the D.C. Circuit striking down as unconstitutional the month-long warrantless use of a tracking device on an individual’s car. In Jones, the police obtained a warrant to install a GPS unit on the defendant’s car within ten days of the warrant’s issuance in the District of Columbia. Despite the warrant’s limitations, however, the police waited eleven days to install the GPS unit, and installed the unit while the car was in a parking lot in Maryland. The district court suppressed only the GPS information that was obtained while the car was parked inside the garage adjoining the defendant’s residence and allowed all information obtained while the car was on public roads. The D.C. Circuit reversed, holding that although there is no reasonable expectation of privacy in the public movements of a vehicle, the totality of those movements over the course of a month “is not actually exposed to the public because the likelihood a stranger would observe all those movements . . . is essentially nil.” Drawing a distinction between the types of information revealed by prolonged surveillance, the appeals court noted that “[w]hen it comes to privacy, . . . the whole may be more revealing than the parts.” The court rejected the notion that GPS monitoring is functionally equivalent to prolonged visual surveillance, and the argument that the automobile exception excused the warrant requirement. Given the ease of GPS surveillance, the Jones decision will no doubt have a broad effect on law enforcement’s use of warrants in all types of police surveillance.
By Sara E. Silva
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Posted on June 24, 2011 Email This Link
, The Supreme Court issued four new cases today of interest to white collar criminal practitioners.
Sorrell v. IMS Health, Inc.
In Sorrell, the Supreme Court dealt a blow to efforts by several states to weaken the ability of pharmaceutical companies to design marketing campaigns carefully tailored to the unique prescribing practices of individual physicians. Writing for the majority, Justice Kennedy found that “Speech in aid of pharmaceutical marketing … is a form of expression protected by the Free Speech Clause of the First Amendment.”
Sorrell examined a provision in Vermont’s Prescription Confidentiality Law that prohibited the sale of prescriber information to pharmaceutical companies to be used for marketing, but permitted the same information to be disseminated for other purposes. The state had advanced several reasons for passing this provision, including a need to protect the public from targeted sales pitches, which, the State asserted, tend to cause the medical community to write an excessive number of expensive, brand-name prescriptions. The Supreme Court found that the law placed improper “content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information” and had gone “beyond mere content discrimination, to actual viewpoint discrimination.” The Court then applied “heightened” scrutiny to find that none of the interests the state advanced on behalf of the law were sufficient to justify its impact on the First Amendment rights of both pharmaceutical companies and the companies that aggregated and provided the prescribing data to them. As Justice Kennedy wrote, “the fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech. … That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.”
The clear, immediate effect of Sorrell is that states cannot forbid or criminalize the sale of prescriber data in circumstances where that data will be used by pharmaceutical sales representatives to tailor their marketing messages to specific prescribers. Beyond that, however, as Justice Breyer noted in his dissent (joined by Justices Ginsburg and Kagan), the decision casts doubt on the validity of numerous commercial speech regulations – particularly the numerous FDA regulations that prevent or burden a pharmaceutical company’s ability to disseminate truthful information about its products. The decision also supports the long-standing view of many in the defense community that the First Amendment offers a shield from the government’s criminal investigations of off-label marketing of pharmaceuticals. After Sorrell, commercial free speech arguments represent an important new tool in the fight against overblown government regulation.
By Ingrid S. Martin
Pliva, Inc. et al.v. Mensing
In Pliva, the Supreme Court reversed the Eighth Circuit to hold that generic drug makers cannot be sued for failing to warn consumers about the potential side-effects of their drugs so long as they exactly replicate the warning on the brand-name equivalent. Justice Thomas’s 5-4 decision held that federal law requiring generics to have the same safety warnings as their brand name equivalents preempted state law allowing for failure to warn suits. In essence the Court agreed with generic drug manufactures’ position that they could not simultaneously comply with the federal requirement of having identical labels and the state laws requiring additional warnings.
As Justice Sotomayor points out in her dissent, Mensing stands in contrast to the 2009 case of Wyeth v. Levine, in which the Supreme Court held that federal law did not pre-empt failure-to-warn claims against brand-name drug manufacturers. The majority opinion distinguishes the two cases by stating that had the plaintiffs taken “the brand name drug prescribed by their doctors,” the law suits would not have been preempted. Here, however, “because pharmacists, acting in full accord with state law, substituted [the generic] instead, federal law pre-empts these lawsuits.”
Going forward, generic drug manufacturers should be careful to perfectly replicate the warnings listed by the brand-name equivalent. Under Pliva, such action should serve as a complete bar to civil liability based on the adequacy of those warnings.
By Tom Reece
Bullcoming v. New Mexico
The Supreme Court also further expanded its holding in Melendez-Diaz v. Massachusetts to hold that the Confrontation Clause is not satisfied when the government introduces a forensic lab report through the in-court testimony of a scientist who did not personally sign the report’s certification or perform or observe the test reported in the certification. Rather, “[t]he accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
Notably, only Justice Scalia agreed with Justice Ginsburg that the state could satisfy the Confrontation Clause through means other than the testimony of the testing scientist, such as allowing the testifying scientist to retest the sample and then testify about his own retest or through “notice and demand” statutes. The other members of the majority (Justices Sotomayor, Kagan and Thomas) declined to endorse that part of Justice Ginsburg’s opinion, suggesting that the government must present the scientist who performed the original test in order to satisfy the Constitution. Justice Thomas also declined to join footnote 6 of the opinion, holding true to his opinion that business and public records can never be considered testimonial unless they are contained in “formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions.” See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2543 (Thomas, J., concurring).
By Sara E. Silva
Freeman v. United States
Finally, in sentencing news, the Supreme Court in Freeman reversed the Sixth Circuit’s holding that a defendant who entered into a plea agreement under Rule 11(c)(1)(C) in which both parties agreed to a particular sentence could not thereafter benefit from a retroactive Guideline amendment. Justice Kennedy announced the judgment of the Court and issued a plurality opinion joined by Justices Ginsburg, Breyer, and Kagan reasoning that, even in 11(c)(1)(C) pleas, the court can and should exercise its own discretion in imposing an appropriate sentence, including consulting the Guideline range. As a result, the Kennedy plurality would hold that a court’s decision to impose a sentence can be based on the Guidelines, even if the defendant agrees to plead guilty under 11(c)(1)(C). Justice Sotomayor concurred in the judgment, only because she found that Mr. Freeman’s agreed-upon sentence expressly tied the sentence recommendation to the Guideline range. But for that fact, Justice Sotomayor agrees with Chief Justice Roberts and Justices Scalia, Thomas and Alito that sentences imposed pursuant to an 11(c)(1)(C) plea are typically based on the agreement, and not on the Guidelines.
Going forward, counsel should think long and hard about the benefits of entering into an 11(c)(1)(C) plea. Given that the majority of sentences still tend to fall within the Guideline range, it may be better to enter an open plea than to shut out the ability both to advocate for a lower sentence from the Court and to take advantage of any future retroactive amendments to the applicable Guideline range. At the very least, counsel should ensure that in any 11(c)(1)(C) plea, if the sentence recommendation is based on the applicable Guideline range, that fact is clearly stated on the record. Otherwise, your client may well be locked into serving a sentence that the Sentencing Commission itself later determines to be excessive.
By Sara E. Silva
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