Rights at Risk: The Limits of Liberty in Modern America (Vintage)
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33. Sarah Elizabeth Richards, “How to Humanize a Killer,” Salon.com, June 7, 2007.
34. “Admitted al-Qaida Conspirator Recants Testimony About 9/11 Involvement,” AP, May 9, 2006.
35. Rompilla v. Horn, 355 F.3d 233, 279 (2nd Cir. 2004) (Dolores Sloviter dissenting).
36. Rompilla v. Beard, 545 U.S. 374 (2005).
37. “Inmate to Spend Life in Prison for 1988 Murder; U.S. Supreme Court Had Vacated Death Sentence,” AP, Aug. 14, 2007.
38. Wiggins v. Smith, 539 U.S. 510 (2003).
39. Rompilla v. Horn (majority opinion).
40. Anthony Kennedy, who voted with the majority in Wiggins, switched sides to the dissent in Rompilla.
41. James Brosnahan, interview with author, June 8, 2004. The Justice Department lawyer who gave the advice, Jesselyn Radack, was stunned to discover that her e-mails on the matter had not been provided to the federal judge who had ordered all relevant documents to be turned over, and that printouts had disappeared from the case file. When they were then leaked to Newsweek, a criminal investigation was opened against her for leaking, prompting a prospective employer to rescind a job offer. Jane Mayer, The Dark Side (New York: Doubleday, 2008), pp. 72–85, 91–97.
42. United States v. John Lindh, No. 02-37A (E.D. Va., Alexandria Div.), Plea Agreement.
43. Neil A. Lewis, “Official Attacks Top Law Firms over Detainees,” New York Times, Jan. 13, 2007; Farah Stockman, “Potshot at Guantanamo Lawyers Backfires,” Boston Globe, Jan. 29, 2007. A fresh attack was mounted in 2010 by Keep America Safe, a conservative group run by former vice president Dick Cheney’s daughter Elizabeth. In a short video, the group denounced the Obama Justice Department for hiring lawyers who had represented detainees, calling the attorneys “the al-Qaeda 7.” The smear drew strong denunciations from a panoply of prominent conservatives, including Charles Stimson, who evidently had a change of heart after his resignation. John Schwartz, “Attacks on Detainee Lawyers Split Conservatives,” New York Times, March 9, 2010.
44. Larry D. Thompson, “Memorandum to Heads of Department Components, United States Attorneys: Principle of Federal Prosecution of Business Organizations,” Dept. of Justice, Jan. 20, 2003.
45. Paul J. McNulty, Deputy Attorney General, “Memorandum: Principles of Federal Prosecution of Business Organizations,” Dec. 12, 2006.
46. U.S. v. Stein, No. S1 05 Crim. 0888 (S.D.N.Y.), July 16, 2007, Judge Lewis A. Kaplan, upheld in U.S. v. Stein, No. 07-3042-CR (2nd Cir., Aug. 28, 2008).
47. 28 C.F.R. § 501.3(d).
48. The Court granted certiorari but ruled that the case had been brought in the wrong jurisdiction—New York, where Padilla was first held, rather than South Carolina, where he was currently held. Rumsfeld v. Padilla, 542 U.S. 426 (2004). His attorneys refiled, and two years later, as the case again worked its way toward the Supreme Court, the government transferred Padilla to the civilian system and prepared a criminal indictment, though on charges much less severe than its original assertion, based on a thin intelligence report, that he had planned with al-Qaeda to set off a “dirty bomb” of nuclear material. He was tried, convicted, and sentenced to seventeen years and four months.
CHAPTER FOUR: THE TILTED PLAYING FIELD
1. Bureau of Justice Statistics, “Felony Sentences in State Courts, 2006,” Dec. 30, 2009, http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2152; Bureau of Justice Statistics, “U.S. District Courts—Criminal Defendants Disposed of … 12-Month Period Ending December 31, 2010,” http://www.uscourts.gov/uscourts/Statistics/StatisticalTablesForTheFederalJudiciary/2010.D04Dec10.pdf.
2. Timothy Lynch, “The Case Against Plea Bargaining,” Regulation (Fall 2003), http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf.
3. Benjamin Weiser, “Lawyer Who Threw a City Case Is Vindicated, Not Punished,” New York Times, March 5, 2009, p. A23. Convicted of the murder, outside the Palladium nightclub, were Olmedo Hidalgo and David Lemus.
4. Benjamin Weiser, “A Judge’s Struggle to Avoid Imposing a Penalty He Hated,” New York Times, Jan. 13, 2004, p. A1.
5. United States v. Angelos, No. 2:02-CR-00708PGC (D. Utah, Nov. 16, 2004), Memorandum Opinion and Order Denying Motion to Find 18 U.S.C. § 924(c) Unconstitutional, Imposing Sentence, and Recommending Executive Clemency, Judge Paul Cassell.
6. Blakely v. Washington, 542 U.S. 296 (2004), which overturned sentencing guidelines in Washington and, effectively, a dozen other states, and United States v. Booker, 543 U.S. 220 (2005), which converted federal sentencing guidelines from mandatory to advisory. The two coalitions: Antonin Scalia, David Souter, John Paul Stevens, Clarence Thomas, and Ruth Bader Ginsburg found them unconstitutional; Ginsburg, Stephen Breyer, Anthony Kennedy, Sandra Day O’Connor, and William Rehnquist declared them constitutional if only advisory.
7. U.S. Sentencing Commission, Final Report on the Impact of United States v. Booker on Federal Sentencing, March 2006.
8. United States v. Brown, No. CR 04-385; United States v. Harris, No. CR 03-539, Judge Paul Friedman, D.C. Dist. Ct., transcript, oral opinion, March 7, 2006.
9. U.S. Sentencing Commission, Preliminary Crack Cocaine Retroactivity Data Report, Dec. 2008.
10. Fair Sentencing Act, S. 1789, Public Law 111-220.
11. Kimbrough v. United States, 552 U.S. 85 (2007).
12. U.S. Sentencing Commission, Guidelines Manual, § 2K1.5 (Nov. 2008).
13. U.S. Sentencing Commission, Final Report on the Impact of United States v. Booker on Federal Sentencing.
14. Bordenkircher v. Hayes, 434 U.S. 357 (1978). Potter Stewart wrote for the majority.
15. The one-level reduction if the plea is “timely” applies only to sentences at level 16 or higher. Guidelines, § 3E1.1.
16. Ibid., § 3C1.1. The judge is supposed to find by a preponderance of evidence that the defendant has suborned perjury by the witness, but in practice the two levels are often added simply because the judge thinks the witness lied.
17. Brady v. Maryland, 373 U.S. 83 (1963).
18. Giglio v. United States, 405 U.S. 150 (1972). See also Justice Department policy on disclosure for trial: Deputy Attorney General, “Memorandum to Holders of United States Attorneys Manual, Title 9, Adding New Section, § 9-5.001: Policy Regarding Disclosure of Exculpatory and Impeachment Information,” Oct. 19, 2006.
19. Boykin v. Alabama, 395 U.S. 238 (1969).
20. United States v. Ruiz, 536 U.S. 622 (2002), in which the Court unanimously reversed the Ninth Circuit’s finding that a guilty plea cannot be voluntary without access to impeachment information, and that a requirement to sign away the right to see such information is an unconstitutional denial of due process. The Supreme Court countered that the right goes to the trial’s fairness, not the plea’s voluntariness, and observed that forcing out details about informants, undercover agents, and witnesses when no trial occurs could compromise investigations and lead to burdensome pretrial preparation even for guilty pleas. Although the prosecutor had pledged to disclose exculpatory evidence during plea bargaining and the case turned on impeachment information, the Court’s language has been interpreted to preclude a right to exculpatory evidence as well.
21. U.S. Sentencing Commission, Final Report on the Impact of United States v. Booker on Federal Sentencing. A subsequent study found racial disparities increasing after Booker. From Dec. 2007 to Sept. 2009, sentences were 23.9 percent longer for black males than for white males, and 6.8 percent longer for Hispanic males than for white males. United States Sentencing Commission, Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Regression Analysis, March 2010.
22. United States v. Mercado, F.3d, No. 05-50624 (9th Cir. 2007).
23. United States v. Vaughn, 430 F.3d 518 (2nd Cir. 2005). The jury found the defendants guilty of conspiring to distribute at least 50 but not more than 100 kilograms of marijuana. The judge found a pre
ponderance of evidence that the amount was 544 kilograms and sentenced them accordingly. Sonia Sotomayor ruled: “After Booker, district courts’ authority to determine sentencing factors by a preponderance of the evidence endures and does not violate the Due Process Clause of the Fifth Amendment.… Appellants claim that the rulings in Booker and its predecessors preclude sentencing on the basis of acquitted conduct. We again disagree.” The Supreme Court refused to hear an appeal from this decision.
24. United States v. Gonzalez, CA Nos. 08-10121 and 08-10144. Narrative drawn largely from Appellant Luis Alberto Gonzalez’s Principal Brief and Appellant’s Response and Reply Brief. “Over-shifting” allegation: Daniel Blank, Gonzalez’s attorney, e-mail to author, Feb. 18, 2009.
25. 18 U.S.C. § 844(h)(1): “Whoever … uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States.”
26. U.S. v. Settles, No. 06-3090 (D.C. Cir. 2008), upholding acquitted conduct in enhancing sentence but questioning its fairness. Settles was sentenced to fifty-seven months for gun possession during a drug deal, even though the jury had convicted him only of the gun charge, not the drugs.
27. Williams v. New York, 337 U.S. 241 (1949).
28. McMillan v. Pennsylvania, 477 U.S. 79 (1986).
29. The Court made this clear in 1999. Two men, found guilty of carjacking, faced a fifteen-year maximum but were sentenced under a section of the law providing up to twenty-five years if someone is seriously injured. The injury hadn’t been charged or proven to a jury, and the Court overturned the twenty-five-year sentences. “It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed,” Justice John Paul Stevens wrote in a concurring opinion. “It is equally clear that such facts must be established by proof beyond a reasonable doubt.” But this applies only where a sentence exceeds the statutory maximum for the convicted conduct. Below that ceiling, acquitted conduct can still enhance the sentence. Jones v. United States, 526 U.S. 227 (1999). See also In re Winship, 397 U.S. 358, 364 (1970), and Mullaney v. Wilbur, 421 U.S. 684 (1975).
30. Apprendi v. New Jersey, 530 U.S. 466 (2000). The majority opinion, by Stevens, was joined by Souter, Ginsburg, Scalia, and Thomas.
31. Under long-standing precedent, no warrant was required to search the vehicle. Police officers testified that since the car was to be towed and impounded, the search would have occurred even without consent as part of routine inventory. By contrast, premises that cannot be moved, such as houses, cannot usually be searched without warrants. Account from case file of United States v. Zavaleta, No. 03-10679 (9th Cir.), appeal from Calif., No. Dist., No. CR-02-40239, including Oakland Police Dept., Suspect Report, Incident 2088, May 29, 2002; transcripts of suppression and plea hearings; Jerome Matthews, interview with author, Dec. 2, 2003.
32. The federal system no longer has parole. All inmates serve their entire prison terms, with “supervisory release” often tacked onto the ends as part of their original sentence. By contrast, most states permit early release by parole boards.
33. Account of the Jenkins case comes from United States v. Neale L. Jenkins, Crim. No. 99-0337 (D. D.C. 2005), Report and Recommendation, U.S. magistrate judge John M. Facciola, Aug. 25, 2005; Order, Judge Paul L. Friedman, Sept. 12, 2005; Transcript, Hearing on Violation of Supervised Release, March 23, 2005; Statement of Patrice Kerry to Public Defender Service Investigator, Oct. 6, 2005; Appeal of Neale L. Jenkins to U.S. Parole Commission, Oct. 6, 2005; Tony Miles, multiple interviews with author; Thomas L. Dybdahl, interview with author, April 26, 2006.
34. Transcript, Hearing, March 23, 2005. Elana Tyrangiel later became associate counsel to President Obama.
35. The D.C. crime was possession with intent to distribute heroin, the federal was unlawful possession of a firearm by a convicted felon. His prior felony was distribution of cocaine.
36. Indigent, Jenkins had free investigators and lawyers from the Federal Public Defenders (Tony Miles) and, for his D.C. case, the Public Defender Service (Thomas L. Dybdahl).
37. John Burnett, “Deputy Has Midas Touch in Asset Seizures,” All Things Considered, NPR, June 17, 2008.
38. John Burnett, “Seized Drug Assets Pad Police Budgets,” Morning Edition, NPR, June 16, 2008.
39. Ibid.
40. Bennis v. Michigan, No. 94-8729 (1996).
41. A bank or brokerage account can be emptied on a judge’s order equivalent to a search warrant issued on probable cause, and a piece of real estate can be frozen with a lis pendens, which is attached to the land record on a judge’s order. The owner may continue to reside there, however; actual forfeiture of real property isn’t effected, if it’s contested, until the case is resolved in court.
42. The case was referred by the local police to the federal authorities. The cash, forwarded to the Drug Enforcement Administration, was returned by the assistant U.S. attorney who was assigned as prosecutor and who conceded the error.
43. John Burnett, Reporter’s Notebook, NPR, June 21, 2008; DEA, “Money Laundering,” http://www.usdoj.gov/dea/programs/money.htm.
44. Avery Gilbert, What the Nose Knows: The Science of Scent in Everyday Life (New York: Crown, 2008), p. 32.
45. Jay Poupko, Toxicology Consultants Inc., cited in United States v. U.S. Currency, $30,060, 39 F.3d 1039 63 USLW 2351 (9th Cir. 1984).
46. Arthur S. Hayes, “Cocaine-Tainted Cash Faulted as Evidence,” Wall Street Journal, June 2, 1993.
47. Jonathan Oyler, William D. Darwin, and Edward J. Cone, “Cocaine Contamination of United States Paper Currency,” Journal of Analytical Toxicology 20, no. 4 (1996), pp. 213–16.
48. United States v. $506,231, No. 96-3308 (7th Cir. 1997), citing “Courts Reject Drug-Tainted Evidence,” American Bar Association Journal 79 (Aug. 1993).
49. Theodore W. Pope et al., “Bacterial Contamination of Paper Currency,” South Medical Journal 95, no. 12 (Dec. 2002), pp. 1408–10, http://www.ncbi.nlm.nih.gov/pubmed/12597308.
50. “Who Really Knows What a Dog’s Nose Knows?” Criminal Practice Report 12, no. 23 (Nov. 18, 1998), p. 462.
51. Illinois v. Caballes, 543 U.S. 405, 410–12 (2005) (Souter dissenting).
52. Under the Daubert standard, after Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), calculations of error rates and other scientific checks are required for such evidence to be admissible.
53. Civil Asset Forfeiture Reform Act, 18 U.S.C. § 983(b).
54. “FEAR’s Gideon Project,” http://www.fear.org/.
55. United States v. $30,060, No. 92-55919 (9th Cir. 1994).
56. United States v. $242,484, No. 01-16485 (11th Cir. 2003), in which no probable cause was found justifying the civil forfeiture of cash from a woman flying from New York to Miami.
57. Colloton’s credentials make his opinion even more startling. He graduated from Princeton and then Yale Law School, clerked for Chief Justice William H. Rehnquist, served as an associate independent counsel with Kenneth W. Starr during the investigation of President Clinton, and was U.S. Attorney for the Southern District of Iowa.
58. United States v. $124,700 in U.S. Currency, No. 05-3295 (8th Cir. 2005) (opinion by Morris Sheppard Arnold and Steven M. Colloton; dissent by Donald P. Lay).
59. John Burnett, All Things Considered, NPR, June 16, 2008. Under CAFRA, legal fees are supposed to be reimbursed by the government, but not all judges will order the award.
60. David B. Smith, e-mails to author, Jan. 12, 2010.
61. All Things Considered, June 16, 2008.
62. Ibid.
CHAPTER FIVE: BELOW THE LAW
1. Immigration and Nationality Act, 8 U.S.C. § 1101.
2. Debi Sanders, e-mail to author, June 10, 2005. She has since become staff attorney for Catholic Charities’ Immigration Legal Services program in Washington, D.C.
3. In 2009, the Obama administration announced
a plan to alleviate these abuses by assigning twenty-three federal agents to twenty-three local prisons housing 40 percent of the immigration detainees, and within three to five years by building enough federal facilities for most detainees, thereby reducing reliance on local or private penal institutions. However, the ACLU complained that the plan contained no standards for the conditions of incarceration, no due process to prevent unjustified detention, and no method to prevent deaths in detention resulting from inadequate medical care. ACLU, “DHS Plan to Improve Immigration Detention an Encouraging Step,” Oct. 6, 2009, http://www.aclu.org/immigrants-rights_prisoners-rights/dhs-plan-improve-immigration-detention-encouraging-step; and U.S. Immigration and Customs Enforcement, “2009 Immigration Detention Reforms,” Aug. 6, 2009, http://www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm.
4. Immigration and Nationality Act, § 292. Those without lawyers fare less well in deportation proceedings. See Donald Kerwin, “Revisiting the Need for Appointed Counsel,” Insight, Migration Policy Institute, April 2005.
5. Toward the end of the Bush administration, Attorney General Michael Mukasey ruled that there was no constitutional right to effective counsel in a removal proceeding. His successor in the Obama administration, Eric Holder, withdrew the decision and pledged to issue new rules on the issue. Spencer S. Hsu, “Precedent Reinstated in Deportation Cases,” Washington Post, June 4, 2009.