Dispatches From The Defendant's Side Of The Criminal Law: August 2007

Tuesday, August 28, 2007

Thanks From The Court To The Defense

Ethics v. Expediency: Public Defender Fined for Failing to Try Case 2 1/2 Hours after Appointment

NACDL NewsRelease

Washington, DC (August 27, 2007) – An Ohio public defender was fined $100 and given a three-day suspended sentence for refusing to go to trial unprepared in a multi-witness assault case the same day he was appointed. Portage County Municipal Court Judge John Plough imposed the sentence on Brian Jones after a three-hour hearing late Friday afternoon.

The sole witness at the contempt hearing was Arkansas lawyer and legal ethics expert John Wesley Hall, president-elect of the National Association of Criminal Defense Lawyers (NACDL). Jones was represented by NACDL member Ian Friedman of Cleveland, who questioned Hall for more than an hour about the ethics of the situation Jones was in. Hall was also questioned by the court.

The alleged contempt arose a week earlier on the day defendant Jordan Scott was scheduled to go to trial on the misdemeanor assault charge. The Portage County Public Defender’s Office was appointed to represent Scott on August 16. When Jones entered his appearance at 11:00 a.m. the next day, he learned that the case was set for trial that very day. The young attorney advised the court that he was unprepared for trial that day, but Judge Plough continued the case to 1:30 p.m., giving Jones 2-1/2 hours to prepare for trial. The public defender's office has a policy against going to trial on a day’s notice, a common occurrence in Judge Plough's court.

Jones tried to remind Judge Plough of his office’s policy, which he said the court had notice of, but the judge cut him off and ordered him arrested in open court. A deputy sheriff took the young lawyer into custody and confined him to an empty room in the courthouse where he was held for five hours before posting $100 bond. Plough continued the contempt hearing until August 24, and berated defendant Scott for not finding his own lawyer before trial.

The Ravenna Record-Courier reported that the incident was not the first time that the judge had threatened a public defender with contempt when appearing after being appointed with little time to prepare.

Ohio defense lawyers were outraged over Jones’ treatment and contacted NACDL. Portage County chief public defender Dennis Lager noted that defense lawyers have an ethical and legal duty to represent their clients competently and effectively, and not to go to trial unprepared.

After a number of phone consultations with Lager’s office and the Ohio Association of Criminal Defense Lawyers, NACDL President Carmen Hernandez, reaffirming the NACDL’s dedication to the right of indigent defendants to constitutionally-effective assistance of counsel, issued a statement condemning the Judge’s jailing of the public defender for standing up for his client’s Sixth Amendment rights. The NACDL press release was sent to news media and posted on the organization’s Web site.

“For the scales of justice to be balanced, both the prosecution and the defense must be prepared,” Hernandez said. “Asking a lawyer to go to trial without preparation is like asking a doctor to perform surgery before diagnosing the patient. Harm is inevitable.”

NACDL President Hernandez joined Immediate Past President Martin S. Pinales of Cincinnati and NACDL’s Indigent Defense Counsel, Malia Brink on a conference call to discuss what the association could do to help. Friedman volunteered to represent Jones pro bono and Hall volunteered his services as an expert witness. Thanks in part to media coverage – Jones’ arrest was reported in the press from Cleveland to Pittsburgh and also on ABC News’ Web page – the courtroom was packed for Jones’ sentencing on August 24.

“Most of the lawyers in the area showed up,” Hall said. There were a lot of reporters in the courtroom also, from as far away as Pittsburgh, but Hall had to remain outside until he was called to the stand. Expert witnesses can be excluded from hearings in the discretion of the trial judge.

Hall testified that no one could prepare adequately for trial in 2 1/2 hours. “Nobody could. I couldn’t.

”During the sentencing hearing, the judge seemed to defend his action, stressing that he insisted that the defense go to trial as scheduled to avoid inconveniencing the prosecution’s witnesses. The witnesses had been under subpoena for two weeks, even though Scott had no lawyer until Jones was appointed. Plough also said that as a compromise, he would have granted Jones a continuance after the prosecutor had presented its case-in-chief. But, as Hall explained, without having spoken to the defendant’s witnesses cross-examination of the state’s witnesses would not have been meaningful at all because there would be no defense theory for cross-examination. The judge also noted in passing that most defendants plead guilty in his court anyway.

Jones was also assessed less than $50 restitution to compensate two of the state’s civilian witnesses who took a day off from work to attend the trial.

Friedman says that his client will appeal.

Monday, August 27, 2007

B.C. man convicted for selling Ecstasy here

SEATTLE POST-INTELLIGENCER

http://seattlepi.nwsource.com/local/329189_ecstasy27.html

B.C. man convicted for selling Ecstasy here
By SCOTT GUTIERREZP-I REPORTER

A British Columbia man faces up to 10 years imprisonment after he was convicted of conspiring to sell thousands of illegal Ecstasy tablets in Washington, the U.S. Attorney's Office reported Monday.

Buonmark Mysaengsay, 43, was convicted Friday in U.S. District Court of three counts of distributing Ecstasy and one count of conspiracy to distribute. He was arrested March 31, 2007, after Seattle detectives watched him and his wife supply a bag containing 4,000 pills to a man who had arranged a drug transaction with a police informant, court documents say.

Mysaengsay, of Surrey, B.C., was in contact with his conspirator on two other transactions monitored by police. On Feb. 22 and March 7, the conspirator, Somchan Somphet, sold 1,000 Ecstasy tablets outside the Silver Dollar Casino in Tukwila. The March 31 transaction took place outside Freddie' s Club Casino in Renton, court documents say.

Somphet pleaded guilty to charges and cooperated with prosecutors as a witness.

Sentencing for Mysaengsay has been set for Nov. 16.

© 1998-2007 Seattle Post-Intelligencer

Sunday, August 26, 2007

If There is a Mendoza Line for Criminal Defense Attorneys I Must Be Hovering Near or Below It!

Friday was a miserable day. A federal jury convicted my client of conspiracy, distribution and possession with intent to distribute MDMA (3,4 methylenedioxymethamphetamine).

I prepared the case for three months, the trial took 4 ½ days and the jury took less than 6 hours to find him guilty on all counts.

While the jury was deliberating on the Ecstasy case, the same judge sentenced another client of mine, one who was undergoing chemotherapy for colon cancer, to a year and a day for a marijuana grow.

For every federal client I have that the jury finds “not guilty,” I have 4 clients who the jury convicts. For every federal client I have who the judge hands down a supervised release with conditions or probation sentence, there are 4 clients who the judge sends to prison.

If there is a Mendoza line for criminal defense attorneys I must be hovering near or below it.

Outline Of A Federal Case

The following is a very broad overview of the stages of a typical federal criminal case.

Defendants are usually brought to federal court in the custody of federal agents. Unless the Grand Jury has already charged the defendant by indictment, the charges against the defendant are set forth in a criminal complaint. The criminal complaint is accompanied by an affidavit that summarizes the evidence against the defendant.

At the defendant's first appearance the defendant will appear before a federal magistrate judge. This magistrate will preside over the first two or three appearances, but the case will ultimately be referred to a federal district court judge.

The prosecutor appearing for the government is called an "Assistant United States Attorney," or "AUSA." There are no District Attorney's or "DAs" in federal court. "

When a defendant first appears before a magistrate, he or she is informed of certain constitutional rights, such as the right to remain silent. The magistrate judge informs the defendant of the charges and the statutory maximum sentence that accompanies each charge. The "statutory maximum" is the most jail time that a defendant can receive -- it is rarely the actual sentence that is given. The magistrate judge then turns to the issue of release, or bail.

If the government wants the defendant detained, the prosecutor will move for detention at the initial appearance. Bail in federal court is controlled by the Bail Reform Act (18 USC § 3141 et seq.). There are some types of criminal charges where the government gets an automatic three days to prepare for a bail hearing. These are called presumption cases and include offenses such as drug dealing, child sex and child porn offenses and crimes of violence, like bank robbery. The government may also try to detain by proving that the defendant is a flight risk, or a danger to the community. In those instances the government also gets three days to prepare for the bail hearing. The defense can ask for up to five days to prepare for the bail hearing.

Pretrial Services is a neutral court agency that interviews the defendant, prepares a short life background and criminal history for the court and makes a bail recommendation. The defendant’s attorney should accompany the defendant to the pretrial services interview.

Before the bail hearing, the attorney works with the defendant to identify resources to post for bail. Bail bondsmen are usually not involved in federal court. If the defendant is released at the bail hearing, it is often with conditions. Typical conditions include reporting to Pretrial Services and drug testing. More restrictive conditions can include electronic home monitoring or release to a halfway house facility.

Within 10 days of the initial appearance for in-custody defendants, and within 20 days of initial appearance for out-of-custody defendants, a defendant is entitled to a preliminary hearing or, if indicted, arraignment.

There are always federal grand juries sitting in the Western District of Washington. A defendant will usually be arraigned on an indictment instead of having a preliminary hearing. This is because the government usually elects to indict rather than give the defendant a preliminary hearing and a Grand Jury indictment eliminates the need for a preliminary hearing.

An indictment is a formal charging document that contains the federal charges faced by the defendant. The goverment presents evidence to the grand jury, and if there is sufficient evidence to to establish probable cause, the grand jury returns an indictment, which is also called a true bill. There can be many indictments brought in one case – later indictments are called "superceding indictments."

At arraignment the defendant enters a not guilty plea. The clerk will announce a trial date and a date that pretrial motions must be filed. The defense attorney will also ask for discovery. Once there is an indictment the case gets a new case number. The initials on the end of the number are those of the district judge to whom the case has been assigned.

A district court judge, or "Article III" judge, is appointed by the President, confirmed by the Senate, and serves for life. The district court judge will preside over the rest of the case, for all hearings, the trial, and sentencing.

There are an enormous variety of pretrial motions that can be filed in a criminal case. These can include constitutional challenges, motions for a bill of particulars, motions to strike surplusage, and severance motions. The most typical pretrial motions are suppression motions where the defense moves to suppress evidence, or to prevent the government from using certain evidence at trial. Suppression motions can include suppression of evidence, like a gun or drugs seized in a search, or statements, like a defendant’s confession.

In the vast majority of federal cases, the defendant pleads guilty and does not go to trial. A defendant can plead guilty as charged or or can strike a deal with the prosecutor and enter what is called a plea agreement. Often the defense attorney and government attorney will spend considerable time negotiating the terms of a plea agreement.

In considering whether to accept a plea agreement the defense attorney will discuss with the defendant the benefits of pleading guilty versus the sentencing consequences if the defendant is convicted after trial. The greater the benefit under the plea agreement the more likely the attorney will recommend that the defendant accept the plea agreement. However, the attorney can only give advice; it is the defendant’s decision alone on whether or not to accept a plea offer or to go to trial.

A small proportion of federal cases go to trial. The typical federal trial lasts three days to a week but some trials, usually multiple defendant "white collar" crimes and complex drug conspiracies, can takes several weeks to try.

At trial, the defendant has a right have the case decided by a jury of 12 citizens. The defense can preemptory excuse jurors whom it feels will not be favorable to the defense case and excuse for cause jurors who are biased or indicate that they cannot be fair and impartial.

At trial the defendant has many right including the right to testify – or to not testify, and if he or she does not testify, that cannot be held against the defendant by the jury. The defendant also has the right to "confront" and cross-examine government witnesses and government evidence, and can use the subpoena power of the court to secure evidence or witnesses on his or her behalf for trial. The defendant is not required to prove him or herself innocent; the government bears the burden of proving the defendant guilty beyond a reasonable doubt as to every element of a charge. Only if all 12 unanimously agree that the government has proved every element of the charge beyond a reasonable doubt can the jury return a verdict convicting the defendant of some or all of the charged crimes.

A defendant can be convicted of an offense by either pleading guilty or by being found guilty after a trial. If a defendant is convicted, sentencing will take place approximately seventy-five days later if the defendant is in custody, or ninety days later if the defendant is out of custody. If out on pretrial release a defendant convicted of a crime will often be remanded into custody after trial.

Probation, like Pretrial Services, are officers of the court and are neutral – they don’t answer to either the defense or the prosecution. Several weeks after the conviction, the defendant will be interviewed by a Probation Officer, with defense counsel present. The Probation Officer will then take information from that interview and along with material provided by the government, and will prepare a draft presentence report (or PSR). The draft presentence report is provided to defense counsel and the government thirty-five days before sentencing. The parties must make factual or legal objections to the report within ten days of receipt. The court does not receive a copy of this draft report – the goal is to resolve as many factual or legal errors as possible before a PSR is provided to the judge.

Fourteen days before sentencing, the final PSR is provided to the judge. This final PSR describes the defendant’s background, describes the offense, and calculates the federal sentencing guidelines. It also includes a recommended sentence, and lists any unresolved objections. Seven days before sentencing, the parties submit sentencing memoranda to the court, arguing for their proposed sentences. Three days later, the parties may submit replies to the sentencing memos. At the sentencing hearing, the district court judge will resolve any remaining objections to the PSR, make factual findings, and will consider the factors of the key sentencing statute - 18 USC § 3553(a) in deciding upon a sentence.

In addition to a custodial sentence, the court will also decide how much restitution is owed, and whether a criminal fine is appropriate. Before imposing the sentence, the court must permit the defendant to speak (or "allocute.")

After conviction the defendant has 10 days to file a notice of appeal or the right of appeal is lost.

Dispatches From The Defendant's Side Of The Criminal Law

Tuesday, August 28, 2007

Thanks From The Court To The Defense

Monday, August 27, 2007

B.C. man convicted for selling Ecstasy here

Sunday, August 26, 2007

If There is a Mendoza Line for Criminal Defense Attorneys I Must Be Hovering Near or Below It!

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Outline Of A Federal Case

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