Sunday, August 24, 2014

Interesting WSJ Article Regarding the Rise in Arrest Records

The Wall Street Journal has an interesting article discussing the rise in arrest records in the U.S.  From the opening paragraphs:
America has a rap sheet.

Over the past 20 years, authorities have made more than a quarter of a billion arrests, the Federal Bureau of Investigation estimates.  As a result, the FBI currently has 77.7 million individuals on file in its master criminal database - or nearly one out of every three American adults.
The full article is available here.

Upcoming ABA CJS International White Collar Crime Institute

For the third straight year, the American Bar Association Criminal Justice Section will host a one and a half day conference that will feature topflight legal practitioners from across the globe tackling such topics as corporate espionage and cybercrimes, international money laundering and sanctions, cross-border evidentiary concerns, whistleblowers, deferred prosecution agreements and international internal investigations.  Special focus will be paid to fraud and bribery cases from the perspective of top prosecutors from various countries.

The conference will occur on October 13-14, 2014 in London, UK. 

This year's featured speaker at the Monday luncheon will be Michael J. Garcia.  Mr. Garcia is a partner at Kirkland & Ellis LLP in New York City and serves as the Independent Chair of the Investigatory Chamber of the FIFA Ethics Committee.  Prior to joining Kirkland & Ellis, he served as the Senate-confirmed United States Attorney for the Southern District of New York (SDNY).  Mr. Garcia spent two years as Assistant Secretary for Immigration and Customs Enforcement at the Department of Homeland Security.  From 2001 to 2002, Mr. Garcia served as Assistant Secretary of Commerce for Export Enforcement.  From 1992 to 2001, Mr. Garcia was a federal prosecutor with the SDNY.  He personally prosecuted a number of high-profile terrorism cases, including the 1993 bombing of the World Trade Center and the 1998 bombing of U.S. embassies in East Africa.


As has been the case in the past, this should be an excellent conference.  For those interested in attending, more information is available here.

Saturday, July 26, 2014

Dallas County District Attorney's Office - First-of-its-Kind Exoneration in US

The Dallas County District Attorney's Office has issued a press release regarding a new exoneration. According to the DA's Office, this is a first-of-its-kind exoneration because it results from systematic DNA testing, even though the soon-to-be exoneree was not actively proclaiming his innocence or requesting DNA testing. It is also important to note for readers of this blog that the exoneree pleaded guilty to the charged offense (rape) even though he was in fact innocent.
A 57-year old Dallas man falsely convicted of sexual assault will be exonerated as a result of systematic DNA testing by a district attorney’s office, even though he was not actively proclaiming his innocence or requesting DNA testing. According to the National Registry of Exonerations, this is the first time in the United States an exoneration of this nature has occurred.

Mr. Michael Phillips, an African-American, served 12 years in prison after pleading guilty in 1990 for raping a 16-year-old Caucasian girl at a Dallas motel where both of them lived. Mr. Phillips says his defense attorney told him not to risk going to trial – fearing a jury would not side with a black man accused of raping a white girl who picked Mr. Phillips out of a photo line- up.

However, Dallas County District Attorney Craig Watkins’ ongoing project of reviewing untested rape kits without defendants initiating the request revealed Mr. Phillips was innocent. DA Watkins signed off on this proactive screening project, which tests DNA preserved by the Southwest Institute of Forensic Sciences. The Dallas area crime lab tested sexual assault kits from the year 1990 that met certain criteria, which paved the way for Mr. Phillips’ exoneration.
Click here for the entire press release.

Click here for a copy of "The Innocent Defendant's Dilemma: An Innovative Empirical Study of Plea Bargaining's Innocence Problem."

Wednesday, July 23, 2014

United States v. Harden - New 7th Circuit Case re Magistrate's Role in Accepting Felony Plea of Guilty

An interesting new case from the 7th Circuit.  In United Sates v. Harden (7th Cir. July 14, 2014), the court examined whether a magistrate judge could properly accept a plea of guilty from a defendant charged with a felony.  From the opinion:
Pursuant to a written plea agreement, Defendant-Appellant Stacy Lee Harden pled guilty to possession with the intent to distribute cocaine.  With Harden's consent, the district court instructed a magistrate judge to conduct a Federal Rule of Criminal Procedure 11 plea colloquy under a local rule allowing for magistrate judges to accept felony guilty pleas.  The magistrate judge accepted Harden's guilty plea, and the district court then conducted a sentencing hearing and imposed sentence.  Harden now appeals the magistrate judge's acceptance of his guilty plea, arguing that the magistrate judge's acceptance of a felony guilty plea, instead of preparing a report and recommendation to the district court, was a violation of the Federal Magistrates Act, 28 U.S.C. section 636; Rule 59 of the Federal Rules of Criminal Procedure, and the United States Constitution.
In examining the importance of the guilty plea, the court stated:

“[A] guilty plea is a waiver of important constitutional rights designed to protect the fairness of a trial.” Johnson v. Ohio, 419 U.S. 924, 925 (1974). It is “more than an admission of past conduct: it is the defendant’s consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or judge.” Brady v. United States, 397 U.S. 742, 748 (1970). In addition to waiving these core rights and protections afforded by our system of criminal justice, defendants often waive their appellate and habeas corpus rights as well. In such cases, accepting a guilty plea is even more final than a guilty verdict. Consequently, when a judge accepts a guilty plea, the judge is required to conduct a long, searching colloquy, as required by Federal Rule of Criminal Procedure 11(b), to ensure that the defendant’s waivers of his important rights are “voluntary ... knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady, 397 U.S. at 748.
The court then went on to rule that just as a magistrate may not conduct a felony trial, even with the consent of the parties, a magistrate may not accept a guilty verdict in a felony case. 

That same limiting principle (that magistrate judges may not conduct felony trials) leads us to our conclusion that the acceptance of a guilty plea in a felony case, a task no less important, is also not authorized by the statute. In accepting Harden’s guilty plea, even with his consent, the magistrate judge violated the Federal Magistrates Act. 
There is very interesting language at the end of the opinion regarding a split in the Circuits regarding this issue. 

We note that our reasoning places us in conflict with several of our sister circuits. There is widespread agreement that a magistrate judge may conduct a Rule 11(b) colloquy for the purpose of making a report and recommendation. See, e.g., United States v. Reyna-Tapia, 328 F.3d 1114, 1119–22 (9th Cir. 2003) (en banc); United States v. Torres, 258 F.3d 791, 796 (8th Cir. 2001); United States v. Dees, 125 F.3d 261, 263, 265 (5th Cir. 1997); United States v. Williams, 23 F.3d 629, 631– 34 (2d Cir. 1994). We agree that this is a permissible practice (and are told that that the district court for the Southern District of Illinois now delegates the conduct of a plea colloquy to a magistrate judge only when a report and recommendation on the plea is sent back to the district judge). Several circuits go further and authorize magistrate judges to accept felony guilty pleas with the parties’ consent. See United States v. Benton, 523 F.3d 424, 431–32 (4th Cir. 2008); United States v. Woodard, 387 F.3d 1329, 1332–33 (11th Cir. 2004); United States v. Ciapponi, 77 F.3d 1247, 1250–52 (10th Cir. 1996). Those courts place great import on the statement in Peretz that “Congress intended to give federal judges significant leeway to experiment with possible improvements in the efficiency of the judicial process....” 501 U.S. at 932.
The case then concludes by noting the importance of plea bargaining today and the need to protect defendant's rights during this stage of the proceedings.  

The desire to make more efficient the district courts’ management of large criminal caseloads is understandable. These days, over 97% of criminal convictions are the result of guilty pleas. See “Statistical Tables for the Federal Judiciary,” Table D-4 (June 2013) (finding that of 84,060 total criminal convictions in a twelve-month period, 81,955 were the result of guilty pleas). Truly, “criminal justice today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012). Yet, the prevalence of guilty pleas does not render them less important, or the protections waived through them any less fundamental. A felony guilty plea is equal in importance to a felony trial leading to a verdict of guilty. And without explicit authorization from Congress, the district court cannot delegate this vital task. The authority to experiment set forth in Peretz is bounded; the Court has never suggested that magistrate judges, with the parties’ consent, may perform every duty of an Article III judge, regardless of the duty’s importance.  (some internal citations omitted)
The entire opinion is available here.

Monday, July 14, 2014

Citigroup Agrees to Pay $7 Billion Settlement

Citigroup has agreed to pay $7 billion related to allegations that it packaged bad mortgages during the pre-financial crisis period.  $4 billion of the payment will be penalties for the alleged conduct.  $2.5 billion will be used in mortgage modifications and related relief for homeowners.  The remaining $500 million will be distributed between five states and the Federal Deposit Insurance Corp.

The settlement avoids further civil litigation by the Department of Justice.  According to CNN, Attorney General Eric Holder stated, "Under the terms of this settlement, the bank has admitted to its misdeeds in great detail.  The bank's activities shattered the livelihoods throughout the country."  He went on to state, "They contributed mightily to the financial crisis that devastated our economy in 2008."

The entire CNN article regarding the settlement is available here.