SUPERLATIVE ENDING! NUMEROUS VERY SERIOUS CHARGES RESULTED IN A STET FOR THE CLIENT.

Posted on: June 1st, 2018  |  No Comments

The client was charged with the following criminal events in the District Court of Maryland for Charles County. Trial was set on June 1, 2018, before the Honorable W. Louis Hennessy.
The State and defense counsel entered into fruitful discussions. All of the following matters were placed on the inactive stet docket for a period one year. At the end of the one year period, the State will enter all of the charges as nolle prosequi (dismissed), if the client obeys all laws during the one year period of the stet.

Count 1, Trespass: Private Property (CR 6-403)

Count 2, Malicious Destruction of Property, Value +$1,000, (CR 6-301)

Count 3, Malicious Destruction of Property, Value -$1,000, (CR 6-301)

Count 4, Burglary-Third Degree, (CR 6-204)

Count 5, Burglary-4th Degree-Dwell, (CR 6-205)

Count 6, Assault-Second Degree, (CR 3-203)

Our client is a young woman with two children with no prior criminal record. The investigation, unfortunately, allowed the Charles County Sheriff’s Department to place the charges. However, after further illumination of the underlying facts by our office, Assistant State’s Attorney, Paul Halliday, made the prosecutorial decision that the charges did not reflect the true nature of this case and, therefore, offered a stet.

As this matter can be immediately expunged from the Court and police records after the one year stet, the client was absolutely delighted.

The Stet Docket: If the State moves to place a case on the stet docket, and the accused agrees to the stet, and the judge agrees to the stet, then the case is placed on an inactive status for three years. Essentially, the state puts the file on a shelf and stops time on the case. The stet is not a conviction or an acquittal. It is a compromise between dropping the case and prosecuting you. Because it is not a conviction, you do not have to tell employers about it if they ask whether you have ever been convicted of any crime. For the first year, either you or the state may request that the case be reactivated. The case would be removed from the shelf and brought back into court for trial. Time is restarted, and you are back in the same position as you are otherwise when initially charged, i.e., about to stand trial.

OUR CLIENT CHARGED WITH TELEPHONE MISUSE RECEIVED A JUST AND FAIR RESULT!

Posted on: May 31st, 2018  |  No Comments

After ongoing and difficult negotiations with the State’s Attorney’s Office, our client entered a plea of guilt to the charge of Telephone Misuse: Anonymous Call, which was deemed to be reasonably expected to annoy and harass a county police officer.

We argued that the event was inappropriate and uncalled for, but was an aberration, which was being addressed by the client by doing community service and attending therapy to address the cause of the behavior. The Honorable Eric J. Nee accepted the plea and sentenced the client to probation with special conditions to have no contact with the officer and to complete whatever therapy was necessary to address the issue at the heart of this event. The Court recognized that the client’s statements of contrition and remorse were genuine and sincere.

Once again, judicial integrity was essential to a fair and just result. Judge Nee, a former Assistant State’s Attorney, used his experience and judgment in this difficult sentencing of a defendant charged with an offense against a police officer. A measured response to an accusation such as this promotes respect for the bench and its ability to weigh the facts and the character of a defendant to enter a just result.

TOTAL AND COMPLETE VICTORY WAS ACHIEVED! ALL CHARGES DISMISSED BY THE COURT WITHOUT HAVING TO PRESENT ANY EVIDENCE ON BEHALF OF THE CLIENT AT TRIAL.

Posted on: May 31st, 2018  |  No Comments

On May 11, 2018, in the District Court of Maryland for Prince George’s County, Abigail Scott and Steve Kupferberg appeared for Trial on behalf of the client who was charged with 1) Failure to Obey a Reasonable and Lawful Order of a Law Enforcement Officer, to wit, comply with investigative stop made to prevent a disturbance; 2) Intentionally and Knowingly Obstruct and Hinder a Police Officer, PFC Proctor of the Maryland National Capital Park Police in the performance of his lawful duties; 3) Intentionally Resisting a Lawful Arrest; 4) Falsely Representing Himself as Police Officer with Fraudulent Design.

On January 27, 2018, our client, an African-American male, was lawfully walking through the Allentown Park wearing his uniform as a special police officer who was coming home from his duties guarding a foreign embassy in the District of Columbia. The client was also carrying his groceries and a wheeled suitcase to his home.

Without any cause whatsoever, PFC Proctor ordered the client to stop and explain why he was walking in a public park. The Client fully complied and identified himself as a special police officer. PFC Proctor confronted the client with his service weapon drawn. The client was then threatened with a taser, pepper sprayed, thrown to the ground and arrested. The client had his identification documents, including his special police identification documents removed and seized. The police refused to return his valid identification as a special police officer until May, 2018. The wrongful withholding of the client’s identification caused the client to miss work from January 27, 2018, until May, 2018.

Abigail Scott handled the cross-examination of PFC Proctor with great skill and aplomb. The cross-examination was critical to our success.

We entered a plea of not guilty and the Court found the client not guilty of all charges without the client having to take the stand or present any evidence. The Honorable Bryon S. Bereano ruled all criminal charges dismissed. These cases are quite difficult for the bench in that the Court must rule on the credibility of a police officer. Judge Bereano found that the charges were totally without merit and should not have been brought. Judicial integrity is essential to a fair trial and a fair finding. “Our hats are off” to Judge Bereano!

SPECTACULAR RESULT! THE CLIENT HAD BEEN INDICTED AND CHARGED WITH CONSPIRACY TO IMPORT AT LEAST 5 KILOS AND LESS THAN 45 KILOS OF MARIJUANA.

Posted on: May 31st, 2018  |  No Comments

On May 22, 2018, our client appeared for sentencing in the Circuit Court for Montgomery County, Maryland, after having pled guilty to the charge of conspiracy to import 5 – 45 kilos of marijuana into the State of Maryland.

Judge Mason after hearing argument at sentencing by Abigail Scott of our office and, thereafter, realizing that the client had extensive mitigation, entered a finding of Probation Before Judgment with one-year unsupervised probation. Probation Before Judgment stays the finding of guilt and gives the client no conviction for this event.

The Court’s sentence was well reasoned and right on the mark. The sentencing memorandum prepared by this office laid the foundation for Judge Mason’s sentencing. Probation Before Judgment is rarely, if ever, offered to defendants facing a charge such as this. Judge Mason demonstrated judicial integrity by taking a chance on our client.

Kudos to Abigail for a job well done!

The New York Times, Relapsing Shouldn’t Be a Crime [May 30, 2018]

Posted on: May 31st, 2018  |  No Comments

When Julie Eldred tested positive for fentanyl in 2016, 11 days into her probation for a larceny charge, she was sent to jail. Such outcomes are typical in the American criminal justice system, even though, as Ms. Eldred’s lawyer has argued, ordering a drug addict to abstain from drug use is tantamount to mandating a medical outcome — because addiction is a brain disease, and relapsing is a symptom of it.

Ms. Eldred’s case, now before the Massachusetts Supreme Judicial Court, has the potential to usher in a welcome change to drug control policies across the country. The case challenges the practice of requiring people with substance use disorders to remain drug-free as a condition of probation for drug-related offenses, and of sending offenders to jail when they relapse.

The prosecution’s counterargument — that the disease model of addiction is far from settled science — is weak. The National Institute on Drug Abuse, the American Medical Association and the Diagnostic and Statistical Manual of Mental Disorders, which is the final authority on psychiatric conditions that qualify for insurance reimbursement, all define addiction as a chronic, relapsing brain disorder that, like diabetes and heart disease, is caused by a combination of behavioral, environmental and biological forces.

The prosecution’s argument is also somewhat beside the point, because it is clear that relapses are common in people struggling to overcome addiction, whether one considers it a disease or not; specialists say that most opioid addicts relapse an average of five to six times before achieving full sobriety.

It is fair to say, as prosecutors and several briefs filed in the case do, that people who suffer from substance use disorders are not wholly unable to choose to abstain from drug use. Most addicts do, after all, manage to refrain from using in any number of public places, in the course of any given day. But their ability to choose rationally and consistently is still impaired, by both brain changes caused by chronic substance use and the sheer force of addiction itself. “It’s not that they don’t have free will,” says Mark Kleiman, a professor of public policy at New York University. “It’s that they are exerting that will against such a colossal force.”

It’s also true that addicts can and do respond to incentives. But the balance of evidence suggests that carrots work far better than sticks, and that in any case, the particular stick of jail time thwarts the treatment process.

“Our patients are far less likely to talk honestly about their relapses and their struggles with recovery if they think it’s going to land them in jail,” says Sarah Coughlin, a social worker and addiction specialist in Charlestown, Mass. “It puts us in a tough spot, because it breeds mistrust.” It also breeds fear: As The Boston Globe reported, one woman committed suicide in the bathroom of a Lowell, Mass., drug court after she watched at least 23 of her 41 fellow probationers get sentenced to jail for relapses and other violations, and after she became convinced that she would soon be sentenced as well.

Of course, criminalizing relapse isn’t the only absurdity that exists at the intersection of drug addiction, criminal justice and public health. As a recent Times article explained, states across the country are enacting laws that allow for homicide charges against just about anyone connected to an overdose death, even if that person is also suffering from addiction.

The irony is both dark and profound: Only in death do drug users become victims. Until then, they are criminals.

In addition, a vast majority of American prisons deny opioid addicts access to medication-assisted therapy, or MAT, which uses Food and Drug Administration-approved medications that can relieve opioid cravings and withdrawal symptoms. Most addiction specialists say MAT is far and away the most effective treatment for opioid use disorder.

Anti-MAT policies have a number of unconscionable effects. They mean that incarceration necessarily disrupts a promising treatment before it has time to work. They also force addicts who are in treatment but faced with incarceration to rapidly and dangerously taper off serious medications. And they increase the risk of post-incarceration overdose deaths. “A lot of the overdoses that lead to homicide charges occur upon release from jail,” says Josiah Rich, a Rhode Island doctor who treats addiction in the prison system. A study by Dr. Rich and his colleagues found that providing MAT to inmates suffering from addiction could reduce such deaths by more than 60 percent.

Policies that punish relapse with jail time and keep sufferers from proven treatments are part and parcel of a nearly 50-year war on drugs, predicated almost entirely on criminalization, that no reasonable person would say is working. It costs about $33,000 a year to imprison someone for a nonviolent drug offense and $6,000 to treat someone with MAT.

A ruling in Ms. Eldred’s favor would mark a positive step toward rethinking this strategy.

It would not, as some critics contend, necessitate freeing everyone with a diagnosis of a substance use disorder from facing any consequences for drug use. “It doesn’t have to be, and it shouldn’t be, an all-or-nothing proposition,” Mr. Kleiman says. “You still want to have consequences, but they should be fair.”

The outcome of the Eldred case won’t have much effect on Ms. Eldred herself. With the help of her lawyer, she was diverted into a treatment program, and is now in remission and rebuilding her life. But a decision for Ms. Eldred could help ensure that other people suffering from addiction get the chance she did.

-The New York Times, Editorial, A22; Wednesday, May 30, 2018.

The New York Times, Warrant is Needed for Driveway Search [May 30, 2018]

Posted on: May 31st, 2018  |  No Comments

WASHINGTON — The Supreme Court ruled on Tuesday that police officers must generally have warrants to enter a home’s driveway in search of stolen vehicles.

The case arose from a search for a Virginia motorcyclist who twice committed traffic offenses while riding a distinctive orange and black motorcycle with an extended frame. Police officers gave chase, but the man eluded them. In one chase, the motorcycle reached speeds of more than 140 miles per hour.

Officer David Rhodes, of the Albemarle County Police Department, investigated that matter. Relying on a Facebook post from a Virginia man named Ryan Collins showing what appeared to be the same motorcycle at the top of a driveway, Officer Rhodes tracked down the address, which was the home of Mr. Collins’s girlfriend.

Officer Rhodes, without a warrant or an invitation, visited the property. He saw what appeared to be a motorcycle covered in a tarp, walked up the driveway and lifted the tarp. The motorcycle, it turned out, was stolen.

Mr. Collins was convicted of receiving stolen property after Virginia courts rejected his motion to suppress the evidence gained by the police officer’s search.

The question for the justices was whether the Fourth Amendment, which bars unreasonable searches, allowed this one.

The Virginia Supreme Court ruled that the search was proper under “the automobile exception to the Fourth Amendment’s warrant requirement.”

The exception, the United States Supreme Court has said, is based on the “ready mobility” of vehicles and “the pervasive regulation of vehicles capable of traveling on the public highways.”

On the other hand, the court has said, “when it comes to the Fourth Amendment, the home is first among equals.” The amendment’s protections, the court had ruled, extend to a home’s “curtilage,” meaning the areas immediately surrounding it, including driveways.

Justice Sonia Sotomayor, writing for an eight-justice majority, said the case involved a clash of those two principles.

“The question before the court,” she wrote, “is whether the automobile exception justifies the invasion of the curtilage. The answer is no.”

“To allow an officer to rely on the automobile exception to gain entry into a house or its curtilage for the purpose of conducting a vehicle search,” Justice Sotomayor wrote, “would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.”
“Indeed, its name alone should make all this clear enough,” she wrote. “It is, after all, an exception for automobiles.”

Justice Samuel A. Alito Jr. dissented, saying the search had been reasonable and thus constitutional. The motorcycle, he wrote, was just a car’s length or two from the curb. “If the motorcycle had been parked at the curb, instead of in the driveway,” he wrote, “it is undisputed that Rhodes could have searched it without obtaining a warrant.”

In defending the search, Virginia officials urged the Supreme Court to draw a distinction between enclosed structures like garages and other areas around a home. Justice Sotomayor said that would give richer people more protection.

“Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles,” she wrote, “but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage.”

The Fourth Amendment, Justice Sotomayor added, citing a 1982 decision, makes no such distinctions. “The most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion,” the decision said.

In his dissent in the case, Collins v. Virginia, No. 16-1027, Justice Alito cited a passage from “Oliver Twist” by Charles Dickens.
“An ordinary person of common sense would react to the court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life,” Justice Alito wrote. “If that is the law, he exclaimed, ‘the law is a ass — a idiot.’”

The New York Times, A15; Wednesday, May 30, 2018; by Adam Liptak

The Washington Post, Opinions: Don’t Let Sentencing Reform be Derailed [May 21, 2018]

Posted on: May 24th, 2018  |  No Comments

Over the past decade, Republicans and Democrats across the country have joined forces to advocate for a fairer, more effective criminal-justice system — one that would keep us safe while reducing unnecessary mass incarceration. At the heart of that effort has been an attempt to reduce overly punitive sentences that fill our prisons for no discernible public-safety rationale.

But now the Trump administration is pushing a misguided legislative effort — likely to be voted on in the House this week — that threatens to derail momentum for sentencing reform. The bill is a tempting half-measure, but lawmakers should resist the lure. The chance to implement real, comprehensive reform may not come again any time soon.

It’s easy to miss, but the push for bipartisan sentencing reform has slowly been gaining strength. It was nothing short of remarkable when Sen. Charles E. Grassley (R-Iowa) led the Senate Judiciary Committee this past February to approve a measure that would revise the federal government’s outdated federal mandatory minimum sentences. Grassley’s move — in direct defiance of the administration — was the most significant legislative step toward federal criminal-justice reform in decades.

Unfortunately, this progress has hit a roadblock with the Trump administration’s modest prison reform bill, called the First Step Act. The bill seeks to improve prison conditions — such as by requiring that inmates be housed within 500 driving miles of their families and by prohibiting shackles on pregnant women. It also includes education, job training and other personal development programs, as well as a system of incentives to participate in the programs.

These narrow reforms are important, but they do not require congressional action, nor do they deliver the transformative change we need. The only way to do that is by amending the bill to include comprehensive, bipartisan sentencing reform.

Why is this so important? The statistics are stark and, by now, well-known. The United States has 5 percent of the world’s population, but 25 percent of its prisoners. Mass incarceration is a core civil rights struggle for this generation: One in three black men will be behind bars at some point, a disparity that perpetuates underemployment in the black community and contributes to the racial wealth gap. The system is hugely expensive and ultimately unfair. And it is not necessary to prevent and punish crime.

It is impossible to right this wrong unless we send the right people to prison for appropriate lengths of time. That starts by making sure that federal prison sentences are smart on crime rather than thoughtlessly “tough.” The Justice Department worked toward that goal when I led the agency under President Barack Obama, blunting the impact of harsh mandatory minimum sentences by directing federal prosecutors to seek lower charges when possible. It worked. The federal prison population dropped while the nation continued to experience near-record-low crime rates. As Grassley’s support shows, this is not just a priority for Democrats. He worked with Sen. Richard J. Durbin (D-Ill.) and others to advance the Sentencing Reform and Corrections Act, which would reduce some mandatory minimum sentences. The bill failed in 2016 as a victim of election year politics, but when Grassley doggedly brought it up again in February, it passed through the committee by a vote of 16 to 5, with support from several members of his own party.

Republicans and Democrats are enacting bold sentencing reforms at the state level, too. Texas, Oklahoma and Massachusetts are just a few of the states that have made changes to cut back on overly punitive mandatory minimum sentences. Unfortunately, the White House has different ideas. President Trump warned of “American carnage” in his inaugural address, and Attorney General Jeff Sessions has stoked false and misleading claims of rising crime. Bowing to the president’s most extreme allies, the White House has put forward the First Step Act, which leaves out sentencing reform entirely.

By choosing a tepid approach, the prison bill abandons years of work and risks making it harder for Congress to advance more serious legislation in the future. Meaningful sentencing reform will be less likely to occur if the narrow prison bill is enacted.

Fortunately, lawmakers have time to change course. They can ensure that any legislation includes sentencing reform, on which there is such strong consensus. Progressive lawmakers in particular should fight to extend, not abandon, the Obama administration’s criminal-justice legacy. Conservative allies such as Grassley have stepped forward for a shared strategy and needed policies; Democrats should stand with them. Nobody is under any illusions: Criminal-justice reform is hard. The White House might scuttle the bill entirely, and wavering members of Congress might balk. But to reform America’s prisons, we must change the laws that send people to them in the first place. Anything less represents a failure of leadership.

-The Washington Post, Opinions; Monday May 21, 2018; by Eric H. Holder Jr. who was U.S. attorney general from 2009 to 2015.

New York Times: Prosecutors Listening In As Inmates Call Lawyers [May 23, 2018]

Posted on: May 24th, 2018  |  No Comments

Most people assume that a conversation with their lawyer will remain confidential. But if the conversation takes place on the phone from the New Orleans jail, it might be used as evidence of a crime.

One inmate awaiting trial on drug charges mentioned to his lawyer that he had just gone through detox.

The call was recorded by the Orleans Parish Sheriff’s office, and his statement was used to prove that a needle the inmate was carrying when he was arrested had been used for illegal drugs, according to the inmate’s lawyer, Thomas Frampton. He was convicted of possession of drug paraphernalia.

“It ended up being the critical evidence,” said Mr. Frampton, who was then a public defender in New Orleans and is now a lecturer at Harvard Law School. Mr. Frampton objected to the inclusion of the evidence, but the judge disagreed.

Conversations between criminal defendants and their lawyers about their cases are typically protected from disclosure, so long as there is no discussion of a continuing or future crime or fraudulent act. This privacy, known as attorney-client privilege, helps guarantee the Fifth Amendment right against self-incrimination and the Sixth Amendment right to legal counsel.

Yet in some places, those conversations, which are so crucial to an inmate’s defense, can be difficult to have.

That includes New Orleans, where all calls made by jail inmates to their lawyer’s cellphone (and to anyone else’s) are recorded and archived in a system that law enforcement officials can access. As a result, if a defendant speaks to his lawyer about evidence against him, or about the sort of plea-bargain offers he would be willing to accept, a prosecutor might be listening in.

This practice is highlighted in a new report from Court Watch NOLA, a nonprofit group that is demanding the sheriff’s office stop recording any calls between jail inmates and their lawyers in a city where the criminal justice system is already stretched. New Orleans public defenders rank as some of the most overworked in the country, in a state with the highest incarceration rate. The district attorney, Leon A. Cannizzaro Jr., is being sued on the grounds that he used fake subpoenas to coerce witnesses to talk, and that he had witnesses who were reluctant to cooperate jailed.

“Where the attorney-client privilege is subverted, so too is the truth-seeking function of the legal system,” the report concludes.

Aides to the local sheriff and district attorney defend the call surveillance. In calls made from jail a message is played warning that the call is subject to recording and monitoring, so they say those on the call know the conversation is not private or privileged. Last year the sheriff implemented a system allowing unrecorded inmate calls to a lawyer’s landline, once the lawyer submits an affidavit listing that landline number. And, they say, lawyers can always go to the jail to speak to clients in person.

But to criminal-defense lawyers in New Orleans, all of that is a fig leaf: Most of the lawyers who represent inmates are badly overworked public defenders carrying 150 felony cases or so at a time. The notion that they can routinely take an hour or two to go to the jail to see a client — or that they are likely to be at a landline when a client is able to call from the jail phone — is absurd, they say.

Some criminal defense lawyers gave up landlines long ago, too, and only use cellphones.

“I don’t know a lawyer who still has a landline,” said Nandi Campbell, a private criminal defense lawyer in New Orleans. A few years ago, Ms. Campbell approached the prosecutor in one of her cases with a lowball plea offer, though she and her client had talked about their willingness to accept a longer sentence.

“He told me he knew the real number I and my client were discussing,” Ms. Campbell recalled. “That’s how I knew he was listening to my calls. I was startled.”

Jailed clients are already at a disadvantage when it comes to planning their defense. Inmates are less able to help attorneys find witnesses or gather other information. And since they are incarcerated and not working, they face more pressure to plead guilty, and they have less money to pay a private lawyer.

Ken Daley, a spokesman for Mr. Cannizzaro, declined to specify how often prosecutors listen to clients calling their lawyers’ cellphones, but he said: “Any call that is on that monitoring and recording system is basically fair game.”

Mr. Daley said the warning that plays at the beginning of these inmate calls constitutes “a voluntary waiver that vitiates privilege” for anyone on the call.

“If public defenders are complaining that they find it inconvenient to visit their clients in jail (they have 24/7 access, by the way) or to utilize the sheriff’s established protocol for unmonitored (and thus, privileged) calls, perhaps they are in the wrong business,” Mr. Daley said in a subsequent email. He added that it is “extremely rare” for jail calls to lawyers to be used as evidence.

Experts say the government is required to provide defendants reasonable access to private, privileged conversations with their lawyers — though what amounts to “reasonable” access is not precisely defined.

Procedural hoops similar to those in New Orleans have been overturned by legal challenges in other places when courts have decided they unreasonably restrict clients’ access to their lawyers, said Peter Joy, a Washington University law professor who has studied government monitoring of attorney-client communications.

“Otherwise it puts a public defender with a heavy caseload in a corner,” Mr. Joy said. “You can only discuss what’s going on with your client over a phone, and most likely a cellphone. But then your client is going to be penalized for having open and frank discussions with you.”

Most jails do not record calls between lawyers and their clients, or have mechanisms in place to erase those calls without anyone listening to them, he added.

Yet New Orleans is not alone: Court Watch NOLA surveyed 47 other city jails across the country and found eight that record calls between clients and lawyers: Salt Lake City; Minneapolis; Tulsa, Okla.; Boston; Frankfort, Ky.; Columbia, S.C.; Annapolis, Md.; and Concord, N.H.

Blake Arcuri, the general counsel for the Orleans Parish Sheriff’s office, said Orleans is one of the few parishes in Louisiana that allows some unrecorded calls between lawyers and clients in jail.

Mr. Arcuri acknowledged that there are inconvenient waits for defense lawyers who meet clients at the jail.

But he defended the monitoring policy, citing concerns about witnesses being intimidated or harmed. A lawyer could hand a cellphone to someone else who could be fed instructions from an inmate, he said.

Dane Ciolino, who teaches legal ethics and criminal law at the Loyola University New Orleans College of Law, said it was “ridiculous” that the jail requires lawyers to go through such hoops, though it was not clear that this amounted to a violation of the constitutional right to counsel.

Given the huge workloads and limited time of public defenders, Mr. Ciolino said, a good case could be made that for inmates to have “reasonable access” to privileged conversations with their lawyers all such calls should be private.

As things stand now, he said, when inmates call their lawyers’ cellphones, rather than discussing evidence or defense strategy, the lawyers almost have to do the opposite.

“It puts the defense lawyer in the very odd position of essentially reading a Miranda warning to their own clients,” Mr. Ciolino said.

-The New York Times; Wednesday, May 23, 2018; A11 by By Richard A. Oppel Jr.

Washington Post Editorial: Getting Prosecutors to Share What They Know: A modest reform could help prevent wrongful convictions [March 20, 2016]

Posted on: March 28th, 2016  |  No Comments

The CONSTITUTION requires that prosecutors disclose favorable and exculpatory information to the defense in criminal cases. What that entails is open to interpretation by individual prosecutors, and failure to live up to the obligation can (and unfortunately has) led to wrongful convictions. A rule being considered by federal judges for the District of Columbia detailing what must be disclosed and when would be a step in the right direction.

The rule would establish courtwide standards for disclosure of information. A committee of judges and lawyers from both the prosecution and defense bar spent a year drafting the proposal. Its impetus goes back to the botched prosecution in 2008 of then-Sen. Ted Stevens (R-Alaska). Prosecutors’ failure to disclose relevant information to the defense prompted U.S. District Court Judge Emmet G. Sullivan, who presided over the trial, to seek a rule change for all federal courts. When that effort failed, attention was narrowed to the U.S. District Court for the District of Columbia.

The U.S. Attorney’s Office was represented on the committee, but it is expected to oppose the proposed rule. “We have some concerns with some aspects of the proposed rule and our office is working with the Justice Department on comments to be submitted,” a spokesman said. The Justice Department has opposed court rules and legislation, favoring instead internal reforms such as improved training and tightened guidelines. Flagrant, intentional misconduct like that in the Stevens case is probably the exception, with, we believe, most prosecutors committed to upholding the law.

But as the Constitution Project, a nonprofit think tank that seeks bipartisan consensus on legal issues, pointed out in a letter last week supporting the new rule, “Even when prosecutors are acting in good faith, the inconsistent, shifting and sometimes contradictory standards for criminal discovery have made compliance…difficult.” The Public Defender Service for the District said the current situation isn’t good enough: It listed eight recent cases, “a non-exhaustive list,” in which relevant information was disclosed late or not at all.

The best way to ensure the timely and fair exchange of information would be to give defense counsel access to all investigative information, with certain exceptions for public safety and witness protection. Jurisdictions that have gone this route say it has worked well, but there seems little chance of federal prosecutors moving to such a system anytime soon. That makes all the more urgent the court’s adoption of this modest reform.

-The Washington Post; Sunday, March 20, 2016; Editorial Board

New York Times Editorial: The Push for Legal Marijuana Spreads [Friday November 6, 2015; Page A22]

Posted on: November 12th, 2015  |  No Comments

Support for making marijuana legal is increasing around the world, and that is a good thing. Earlier this week, the Mexican Supreme Court opened the door to legalizing the drug by giving four plaintiffs the right to grow cannabis for personal use.

In Canada, the newly sworn in prime minister, Justin Trudeau, has said he intends to change the law so people can use the drug recreationally; medicinal use is already legal in that country. And in the United States Senator Bernie Sanders of Vermont, who is seeking the Democratic nomination for president, recently introduced a bill that would let states decide if they want to make the drug legal without worrying about violating federal law.

Laws banning the growing, distribution and possession of marijuana have caused tremendous damage to society, with billions spent on imprisoning people for violating pointlessly harsh laws. Yet research shows that marijuana is far less harmful than alcohol and tobacco, and can be used to treat medical conditions like chronic pain.

The Mexican Supreme Court’s ruling, which applies only to the four plaintiffs seeking a right to grow marijuana, does not strike down the country’s marijuana laws. But it will open the way to more legal challenges and put pressure on President Enrique Pena Nieto and the Mexican congress to change the law, which has helped to fuel drug-related crime in the country.

Prohibition in Mexico and elsewhere in the Americas will also become harder to maintain if California voters legalize recreational use of marijuana. Activists there are seeking to put legalization initiatives on the 2016 ballot. California was the first state to allow medicinal use of the drug in 1996, and it is a big market for illegal Mexican cannabis. It would make little sense for Mexico to spend countless millions a year in drug enforcement to bank a substance that is legal and regulated across its northern border all the way up the western coast to Canada. Oregon and Washington have already legalized the drug, as have Colorado, Alaska and the District of Columbia.

Some proponents of keeping prohibition in place might be encouraged by the defeat of an Ohio legalization initiative on Tuesday. But voters did the right thing by rejecting that measure because it would have granted a monopoly over the growing and sale of legal marijuana to a small group of investors. Even the acting administrator of the Drug Enforcement Administration, Chuck Rosenberg, who opposed legalization, described that ballot measure as an “anomaly.” (Mr. Rosenberg also said marijuana was “harmful and dangerous” but he acknowledged that other dangerous substances are “perfectly legal.”)

What’s needed now is responsible leadership from President Obama and Congress. They ought to seriously consider the kind of legislation Mr. Sanders has proposed. His bill would remove marijuana, or “marihuana” as it is called in federal law, from Schedule I of the Controlled Substances At, which is meant for drugs that have a high potential for abuse and no medical use.

This change would allow states to decide if they want to make the drug legal and how to regulate it without being limited by federal law. Mr. Sanders’s bill would also make it illegal to transport the drug across state lines. If Congress is unwilling to act, Mr. Obama should move on his own by ordering the attorney general to request a study by the secretary of health and human services, which would be needed if the administration is to remove the drug from Schedule I on its own.

A growing group of activists, judges and lawmakers is showing the world a path to more sensible drug policies. Mr. Obama and Congress should join them.

-New York Times; Friday November 6, 2015; Page A22