NO IT'S NOT CSI FORENSIC LAB FAILURES WITH ERRORS, LIES & FALSE TESTIMONY

Every attorney practicing Criminal Law needs to be aware that Testimony provided by Government Experts is often riddled with error. And error leads to the worst thing that can happen in criminal law, wrongful convictions.
 A new book, Strengthening Forensic Science in the United States: A Path Forward shows the failure of many crime labs to abide by scientific standards. Here are a few of their findings:

Forensic labs "lack mandatory and enforceable standards, founded on vigorous research and testing, certification requirements, and accreditation. Additionally, forensic science and forensic pathology research, education, and training lack strong ties to our research universities and national science assets.  ...  In addition to the problems emanating from the fragmentation of the forensic science community, the most recently published Census of Crime Laboratories conducted by BJS describes unacceptable case backlogs in state and local crime laboratories."  Due to documented understaffing, the NRC found that makes it difficult for the labs to avoid errors.  They find the standards of forensic practice in need of serious upgrading.  Of greater concern than that they are understaffed is the "knowledge base" problem; "Adding more dollars and people to the enterprise may reduce case backlogs, but it will not address fundamental limitations in the capabilities of forensic science disciplines to discern valid information from crime scene evidence."

Forensic "science " research is hap-hazard, and they criticize it being driven by "professional [i,e., LEO] cultures" with a "reliance on apprentice-type training and a guide-like structure of disciplines." -- "The fragmented nature of the enterprise raises the worrisome prospect that the quality of evidence presented in court, and its interpretation, can vary unpredictably according to jurisdiction." The forensic science community lacks central governance to pull itself out of its current weaknesses, and none of the disciplines sees any need for change -- though NRC does -- they are certain that DOJ and the FBI should not be the seat of that governing body though: "There is little doubt that some existing federal entities are too wedded to the current 'fragmented' forensic science community, which is deficient in too many respects.  Most notably, those agencies fail to produce a rigorous research agenda to confirm the evidence reliability methodologies used."

Now they know what we always knew: it's like science, but not always real science with the rigors and tests of reliability real science requires; leading to real errors as well as   erroneous interpretation of results in testimony. It's also important to note that even fingerprint evidence is often unreliable and DNA evidence can be fabricated, with the government often providing false forensics testimony.

NO IMMUNITY FOR SERVICE OF PROCESS IN FLORIDA LAW

Brand new Florida law regarding service of process - Thanks to Maria J. Gutierrez for providing this important summary of Florida's new law ending immunity for service of process.

The immunity enjoyed by residents of Florida’s gated communities is over for many. Security guards, doormen and other sentinels of gated communities and condominium complexes are now required to allow unannounced access to process services which means our privacy rights have taken another blow. Even though gated communities have increased dramatically in recent history Florida becomes on the third state, following California and Georgia, to pass a law that allows for the serving notice of lawsuit on residents of such communities. 

One alternative to serving the process personally of course is to publish notices but judges recognize the poor likelihood that a defendant will see a public notice. This is often not the best way to ensure fair due process. 

It's important for lawyers to remember that on occasion judges have invalidated service because the process server didn’t initial the documents for recording in the place a judge specified and this led to confusion about where to annotate a document. This is now clarified in the bill in that the initial should be on the front page of the service documents. And in Florida when it can be proven that service of process was fraudulent the server can be charged with a felony.

At a time when many more people are being served with legal papers than ever before in the history of Florida, it's to thier benefit that process servers are often very resourceful people and will have to be so if they are to serve documents on the residents on Fisher Island just off South Beach. Access to the Island is controlled by way of a privately operated ferry by the Islanders who can refuse to take anyone to the Island on the ferry. So process servers may have to learn to swim or club together and get a boat to take them across the Island should there be a need for effecting service in the future. Hope if you go to that Island no one tries to serve you there.

FLORIDA FEDERAL CRIMINAL DEFENSE ATTORNEYS SHOULD NOTE CHANGES FOR APPEAL BRIEFS

Many of the Clearwater Criminal Defense Lawyers and CJA lawyers may not be aware that on Monday, Aug. 1, 2011, the new appellate rules go into effect. Just when you think you understand them, the legal rules always change.

For Federal lawyer's who have an appeal it's always important to review the rules before you file a brief. There aren't many changes, mostly nuances and reorganization of the 11th Circuit Clerk's office.  Many appeals will either be based on an entire trial or will involve an appeal of the Federal Sentencing Guidelines or the way the Court interprets and applies the guidelines or the law itself such as an appeal on whether false imprisonment of lawyers is a violent crime under the federal law - it isn't.

One important change is the re-designation of the “Statement of Jurisdiction” section of the initial brief to “Statement of Subject-Matter and Appellate Jurisdiction.” 11th Cir. R. 28-1(g). This may sound trivial, but the Court likes procedural conformity, so it is a good idea to comply. For briefs filed on or after Monday, August 1, 2011, change the jurisdictional section in your template and now entitled it: "Statement of Subject-Matter and Appellate Jurisdiction." As per the contents of the jurisdictional statement, 11th Cir. R. 28-1(g) has been amended to note that the "jurisdictional statement must contain all information required by FRAP 28(a)(4) through (D)." 
Federal Rules of Appellate Procedure 28(a)(4)(A) through (D) specify that the jurisdictional statement include the basis for the district court’s jurisdiction {18 U.S.C. § 3231 in criminal appeals} and the appellate court’s jurisdiction {18 U.S.C. § 3742 in most sentencing appeals; 28 U.S.C. § 1291 in most other types of criminal appeals}, with citations to the applicable statutes and relevant facts establishing jurisdiction, the filing dates establishing the timeliness of the appeal, and an assertion that the appeal is from a final order or judgment. 

It's also important in grinding federal cases to never give up hope. Often federal defense lawyers seem beaten down by harsh results and the overwhelming complexity of the appeals process. Never forget the successes which federal appeals have brought countless defendants to restrict harsh unfair drug sentencing such as the crack to cocaine ratio as redefined by Congress and the Courts due to countless defense appeals from lawyers who never forgot simple plain fairness. 

FEDERAL COURT FINDS FLORIDA'S DRUG LAWS UNCONSTITUTIONAL WILL STATE JUDGES AGREE?

Will Florida's 6th Circuit Judges in Pinellas, Tampa Bay, St. Petersburg, Clearwater and Largo Florida have the political courage to follow Judge Scriven's recent well reasoned federal decision? Miami Judges are finding Florida Drug laws unconstitutional, but the consequences for their decisions are less severe than in Tampa Bay.  So the question might be better urged as must the judges follow the law as given by the Federal Judge? The answer will come from how the Supreme Court of Florida interprets Florida Drug law.

The applicability of Judge Scriven's decision in Shelton -- that the Fla Drug statute is unconstitutional on its face -- cannot be overstated -- for state and federal cases. Some of you that you have raised this issue before and are glad for the opportunity of raising it again while working on ideas for its application in federal cases -- which regularly apply enhancements based on prior Florida drug convictions. 

Here are some interesting ideas about the federal ruling finding Florida's drug laws unconstitutional:

The court noted that no other strict liability statute carrying the penalties of the magnitude of § 893.13 has been upheld under federal law... the court ruled that § 893.13 regulates inherently innocent conduct because it does not require even a minimal showing that the Defendant knew he was delivering any illicit substance as an element of the offense charged. The court explained that there is along tradition of lawful delivery and transfer of containers that might contain substances – carrying luggage on and off public transportation, bags in and out of stores, carrying book bags and purses, transporting boxes via commercial transportation. 

The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statue: delivery (actual, constructive, or attempted),and the elicit nature of substance. The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposed that he does in fact have guilty knowledge. Such an outcome is not countenanced under applicable constitutional proscriptions.

What this boils down for Clearwater Federal Defense Lawyers is that Judge Scriven believes Florida law allows a Defendant to be prosecuted and found guilty of possession of drugs even if the Defendant has no knowledge of the drugs.  Knowledge is the linchpin of any criminal act. How can someone be guilty of possessing drugs unless there's proof the person knew of the drugs and without knowledge how could there be real possession?

DECONSTRUCTING FEDERAL MIDDLE DISTRICT OF FLORIDA SENTENCING GUIDELINE ENHANCEMENTS

Clearwater Criminal Defense Attorneys know that the federal sentencing guideline amendments promulgated by the Sentencing Commission pursuant to the congressional directive in the Fair Sentencing Act can be challenged -- and the aggravators should be challenged. Yet challenging the aggravators is an art which sometimes requires counterintuitive thinking and use of federal case law to produce the best possible result at a Federal Sentencing. 

The new federal guideline aggravators include upward adjustments based on the degree of violence involved in a federal crime, maintaining an establishment, and super role aggravators, which as the name implies is not something that a Defendant wants to have happen at sentencing. 

Clearly America needs to learn about decriminalization of nonviolent drug crimes as in Europe if the true goal of Congress is to provide fair sentences. More needs to be done to allow prisons to use compassionate release to allow sick inmates to serve less time in prison. And long jail terms should be given to mainly to violent criminals only rarely giving long sentences to white collar criminals who could be shamed into good behavior by other means than jail, especially at a time when the crime rate in Tampa Bay is falling as in the entire United States. Yet many prisoners spend the best part of their lives in prison because of the harsh drug laws with minimum mandatory sentences imposed by the Federal Sentencing Guidelines with too little discretion given to our Federal Judges.

Below are excerpts from the Sentencing Resource Counsel explaining how to challenge these aggravating factors:

Deconstructing the New Guideline Enhancements Implemented in Response to the Fair Sentencing Act of 2010

Sentencing Resource Counsel Project July 22, 2011

The Fair Sentencing Act of 2010 increased the quantity thresholds for the five- and ten- year mandatory minimums under 21 U.S.C. §§ 841(b)(1) & 960(b) in crack cases and eliminated the five-year mandatory minimum for simple possession of crack cocaine. See Pub. L. No. 111- 220, §§ 2, 3 (Aug. 23, 2010). The resulting18:1 powder-to-crack ratio reflects political compromise rather than an empirically based policy judgment about the relative harms of crack and powder cocaine. 

The Act improves fairness but cannot be said to “restore fairness” when fairness in federal cocaine sentencing never existed. These ameliorative changes came at a significant price. Congress also directed the Commission to ensure that the guidelines provide penalty increases for a variety of aggravating factors for all drug offenses. See Pub. L. No. 111- 220, §§ 5, 6. It directed an enhancement of at least two levels if the defendant used or threatened violence, id. § 5, bribed a law enforcement officer, id. § 6(1), or maintained an establishment for the manufacture or distribution of drugs, id. § 6(2). It also directed an enhancement of at least two levels for defendants who receive an aggravating role enhancement and who engaged in other specified conduct, id. § 6(3)(A), such as using another person through fear, friendship or affection to engage in illegal conduct, id. § 6(3)(B)(i), or distributing drugs to, or involving, a person under 18, over 64, or pregnant, id. § 6(3)(B)(ii)(I)-(II), or distributing drugs to, or involving, a person unusually vulnerable due to physical or mental condition or particularly susceptible to criminal conduct...

This paper provides a brief overview of why guideline increases promulgated in response to a congressional directive are unlikely to advance the purposes of sentencing. It then demonstrates that the guideline increases promulgated in response to the directives in the FSA do not advance the purposes of sentencing, focusing first on the two new enhancements most likely to impact your cases (use or threatened use of violence and maintaining a drug-involved premises), how
1 See United States v. Williams, __ F. Supp. 2d __, 2011 U.S. Dist. LEXIS 48599, at **53-100 (N.D. Iowa Apr. 7, 2011) (Bennett, J.) (describing in exhaustive detail the historical and legislative backdrop of the 18:1 ratio and the absence of rationale for it); United States v. Shull, __ F. Supp. 2d __, 2011 2559426 (S.D. Ohio June 29, 2011) (excellent review of same and war on drugs)...The Commission amended the guidelines in response to these directives, and ways to argue that the resulting enhancement either does not apply or should not be followed as a matter of policy. When relevant, important language and commentary serving to limit their scope is highlighted.For completeness, the two new provisions for defendants receiving the minimal role adjustment under Chapter 3 are set forth, with important language highlighted.

And as always it's unfortunate but sadly true that the Guideline Enhancements directed by Congress are very unlikely to reflect sound policy judgments in the real world. So it's important to bring to the Court's attention other factors which may be used by the Court to lower a sentence even when in practical terms an enhancement applies.

Unlike the Sentencing Commission, Congress is under no obligation to ensure that its policies meet the purposes of sentencing, to conduct empirical research, or to consult with Judges, Prosecutors nor especially Clearwater Criminal Defense Lawyers. Nor is Congress obliged to ensure that its enactments are consistent with each other, or with the guidelines, or with any overarching theory of how to best achieve the purposes of sentencing. Congress is free to legislate piecemeal in response to a highly publicized case, or in response to lobbying by the Department of Justice or other interest groups seeking sentence increases for purposes other than those set forth in § 3553(a).
The ink had hardly dried on the first set of guidelines when Congress began directing the Commission to take particular actions through what are referred to as “directives,” both general and specific. A general directive instructs the Commission to study a particular issue and report back to Congress or amend the guidelines if the Commission determines it is needed. Specific directives, however, require the Commission to take particular actions. Specific directives, unlike mandatory minimums, are binding on the Commission, and this is so even if they conflict with the goals of the SRA. See United States v. LaBonte, 520 U.S. 751 (1997).

IS IT ETHICAL FOR A PROSECUTOR TO MAKE THREATS & ADD CRIMINAL CHARGES IN TAMPA BAY, FLORIDA?

Clearwater Criminal Defense Attorneys are often asked, when can it be established that prosecutors have acted in bad faith? You might think threats from the prosecutors would be sufficient.  You could think that making those threats real be the filing of additional charges could be enough, but this America and you'd be wrong. And worse this is Tampa Bay, Florida so you'd be doubly wrong.
Here is an example from a recent federal court case where the court clearly found bad faith on the part of prosecutors where a Defendant is prosecuted more harshly because of non-criminal events that occurred after the original indictment was filed against him.
In this case a Defendant was warned that if he filed a motion to suppress there'd be a 'seismic shift' in his prosecution. Meaning that all hell would break loose which it did when the government filed a superseding indictment which contained additional charged counts against the Defendant.
Well that's what the trial court thought. The appeals court made a vastly different decision noting that the Federal District Court denied due process to the prosecutors in not granting them notice nor an opportunity to explain their actions no matter how corrupt the prosecution. 

 The Drug Enforcement Administration had conducted an undercover investigation of Shaygan after one of his patients died from a lethal combination of prescription and illegal drugs. After Shaygan’s arrest, the government discovered additional evidence of violations of federal law, and Shaygan moved to suppress statements he had made to federal agents who, Shaygan contended, had violated his right to counsel.In response to that motion, Cronin warned Shaygan’s lead counsel of an impending “seismic shift” in the prosecution of Shaygan. Soon afterward, the government filed a superseding indictment with additional charges and supported those charges at trial with the testimony of several witnesses and documentary evidence.
Near the end of trial, the district court allowed a second cross-examination of two witnesses for the government after it came to light that those witnesses had cooperated in a collateral investigation about potential witness tampering by members of the defense team. The district court instructed the jury that the reopening of cross-examination was necessary to address misconduct by the government. In closing argument, Shaygan’s counsel compared that alleged misconduct to the Salem witch trials.
After the jury acquitted Shaygan of all charges, the district court held an inquiry about sanctions under the Hyde Amendment. The district court found that the prosecutors “acted vexatiously and in bad faith in prosecuting Dr. Shaygan for events occurring after the original indictment was filed.” The district court awarded Shaygan attorney’s fees and costs, publicly reprimanded Cronin and Hoffman, and referred those attorneys to disciplinary authorities. On appeal, the United States, Cronin, and Hoffman contended that the district court abused its discretion and committed fundamental errors. The United States argued that the district court erroneously ruled that the superseding indictment was “brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous,” and that the district court erroneously concluded that an award of attorney’s fees and costs under the Hyde Amendment could be supported by discrete incidents of bad faith, such as discovery violations, without regard to the overall litigating position of the United States. Cronin and Hoffman argue that the district court violated their right to due process, under the Fifth Amendment, when it denied them notice and an opportunity to be heard before it entered public reprimands of them. The Eleventh Circuit agreed with these arguments, and held that the district court abused its discretion when it imposed sanctions against the United States for a prosecution that was objectively reasonable, and that the district court violated the constitutional right to due process of the two lead prosecutors, Cronin and Hoffman, when it denied them notice of any charges of misconduct and an opportunity to be heard.

The process of Federal Sentencing even when a Defendant pleads with a waiver of appeal for collateral attack of the prosecutor is deemed unethical by the Florida Bar, but for threats by prosecutors to be carried for the mere filing of an evidentiary motion to suppress goes much further. Even if somehow legal, isn't it unethical conduct? 
Leaving your Clearwater Criminal Lawyer with this sad insight about our Federal criminal justice system in Florida: even the threat of a 'seismic shift' combined with action on that threat by prosecutors leveling additional charges was not sufficient on it's face to bring the prosecutors to heal nor to establish Bad Faith prosecution.