• Sentencing court may not presume Guidelines range is reasonable.  “In short, while a sentencing court is statutorily obligated to give fair consideration to the Guidelines before imposing sentence, in the end, it must make an ‘individualized assessment’ of the sentence warranted by § 3553(a) ‘based on the facts presented.’”

• Deference to sentencing court derives from its unique ability to make individualized assessments.  “[D]istrict courts have two distinct institutional advantages over appellate courts . . .(1) [they impose scores of sentences each year, and (2) [are] in a superior position to find facts relevant to sentencing and to judge their import under § 3553(a).  In the latter respect, district courts hear all the evidence relevant to sentencing, make credibility determinations, and interact directly with the defendant. In the process, they ‘gain[ ] insights not conveyed by the record’ that are often critical to identifying a just sentence.”

• Appellate court may not presume the unreasonableness of a non-Guidelines sentence.  “The Sixth Amendment prohibits appellate courts from applying rules or standards of review that effectively place a ‘thumb on the scales’ in favor of Guidelines sentences.”   A non-Guidelines sentences is not viewed with inherent suspicion” or subject to a “higher standard of review than abuse of discretion.”

• Previous precedent requiring “extraordinary circumstances” is no longer operative.  “An appellate court may not demand ‘extraordinary’ circumstances to justify non-Guidelines sentences,” although, “a major variance from the Guidelines range ‘should be supported by a more significant justification than a minor one’”

• District courts enjoy considerable discretion in identifying the grounds that can justify a non-Guidelines sentence.  And these grounds may include ones previously rejected under pre-Booker precedent, such as “a policy disagreement with the Sentencing Commission.”  

• District courts are free to disagree with the Sentencing Commission, but such disagreements are subject to “closer review” where Commission did typical empirical and experiential study.  Supreme Court requires “closer review . . . when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails properly to reflect §3553(a) considerations even in a mine-run case,” but “it appeared to limit this possibility to cases involving Guidelines based on the Commission's traditional empirical and experiential study.”

• Reviewing court may not substitute its view of what is the “right” sentence.  “[Appellate court may not] reject a variance simply because the resulting sentence differs from that which the reviewing court might have imposed if it had been entrusted with that responsibility.”  “[E]ven experienced district judges may reasonably differ, not only in their findings of fact, but in the relative weight they accord competing circumstances. Such reasonable differences necessarily mean that, in the great majority of cases, a range of sentences – frequently extending well beyond the narrow ranges prescribed by the Guidelines – must be considered reasonable.”  Appellate court, therefore, will only reject “those outlier sentences that reflect actual abuse of a district court's considerable sentencing discretion.”

Striking another blow against the strategic use of peremptory challenges, the Second Circuit upheld the "blind strike" method of jury selection in United States v. Bermudez, 06-5119-cr, 2008 WL 2415713 (2d Cir. June 17, 2008).  This is where both parties simultaneously exercise their peremptory challenges rather than alternately, leading to the possibility that the defense and the prosecutor strike the same person. 

Citing a Nineteenth Century Supreme Court case and five sister circuits, the Court held the defendant has no right to know the government's strikes before announcing his own.  He only has the right to strike up to ten jurors he finds objectionable.  "No injury [is] done if the government unite[s] with him in excluding particular persons from the jury" (quoting Pointer v. United States, 151 U.S. 396 (1894)). 

Of course, for the defense, duplicating a strike with the government means wasting a strike - a strike that could have been used more effectively to increase the defendant's prospects of getting a jury of his peers, or even a couple of jurors of his peers.  Afterall, given the racial disparities between the jury panels and the population of defendants, the defense doesn't just exercise its strikes to exclude people from the jury, it also uses strikes strategically in order to include particular people. Once again, as it did in Rodriguez, the Second Circuit has declined to give the defense any strategic advantage in jury selection, beyond the advantage granted by law (ten strikes as opposed to the government's six). 

In addition to the jury selection issue, most of this opinion deals with an evidentiary issue - whether the government could introduce bolstering evidence in anticipation of, but prior to, an actual attack on their witness's credibility.  The majority affirmed, but there is a compelling (and disheartening) dissent from District Judge Underhill, sitting by designation.

In United States v. Johnson, 2008 WL 2446143 (2d Cir. June 19, 2008), the Second Circuit presents a primer on the questions an AUSA cannot ask their case agent at trial, the questions defense lawyers should object to, and government justifications that don’t hold water.  Grudgingly affirming co-defendant Walker’s conviction (which resulted in a life sentence), despite “large amounts of impermissible matter,” the decision is an invaluable resource to counter the government efforts to sneak improper testimony in under the guise of “background.”

The Second Circuit Blog has some choice words for this decision, so I will focus here on the things agents cannot say, and the fallback arguments prosecutors cannot make.  Forgive the fact that some of these may seem patently obvious.  They weren’t to Walker’s lawyer, who failed to object to a single instance, thus leaving Walker with the plain error standard of review.  Had he objected, the Court indicated that would have tipped the balance in favor of reversal. 

Agent Don’ts

• Agent cannot repeat hearsay describing defendant’s criminal acts (“we had identified basically three principal higher-level players, Mr. Walker, etc.;” “[cooperating witness told us] that he had obtained the crack cocaine from . . . Ernest Walker, who we were already investigating, having identified him as the supplier of multi-ounce crack quantities;” “[cooperating witness confirmed] that he now got [his crack] from Mr. Walker;” “there was a male . . . involved with . . . Mr. Walker in the distribution of crack cocaine and other criminal endeavors”)

• Agent cannot vouch for credibility of government witness (“when I’m asked as to how I believe [the witnesses] . . . it’s information from other people, actual physical evidence, and verification through interviewing the people who are involved”)

• Agent cannot say or even imply that information obtained from investigation “corroborated” other evidence (another cooperating witness “provided[d] information to law enforcement as well,” thus implying that this witness “had confirmed Walker’s involvement in drug dealing”)

• Agent cannot assert own belief about defendant’s guilt (see above)

• Agent cannot announce his own assessment of the defendant’s character (“very shrewd, smart, street-smart, calculating . . .”)

• Agent cannot assure the jury of the reliability of the government’s entire case (I am a Special Agent, who “investigates violations of the federal controlled substance laws,” identifies individuals involved in the drug trade, uses “investigative techniques to obtain evidence” and “then bring that evidence to a court such as this, to hold these people accountable for their illegal actions”)

Government Don’ts

• Cannot backdoor improper, incriminating hearsay evidence as “background of the investigation.”  Balancing test of Rule 403 dictates that “unimportant issue of investigative background” does not outweigh “substantial prejudice to the defendant on the crucial issue of proof of guilt,” particularly where it may be possible to redact the prejudicial portions.

• In a related vein, nor can it backdoor hearsay evidence to prove “state of mind of the investigating agents, to help explain their actions.”  The Court held in Johnson: “[t]he agent’s state of mind as the investigation progressed is ordinarily of little or no relevance to the question of the defendant guilt.” 

Defense Lawyer Dos

· Object!

To be competent to stand trial, a defendant need only have a rational understanding of the proceeding against him and the ability to consult rationally with his lawyer - I say only, because as any defense lawyer who has represented a mentally ill client knows, this standard can in practice be a fairly low threshold.  

As the American Psychiatric Association points out in its amicus brief in the Supreme Court's decision of Indiana v. Edwards, 2008 WL 2445082 (March 26, 2008), "[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant's ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.”

Now, in Edwards, the Court has finally arrived at the APA's obvious conclusion, holding that states are now permitted to "insist upon representation by counsel for those competent enough to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."

In fascinating decision, that pits paternalism against individual choice, Justice Breyer, writing for the majority, rests the decision on practical and symbolic grounds.  Not only does the nitty gritty of trial lawyering require a higher level of competence than simply being the trial defendant, he adds that concerns for the "dignity" of both the defendant and the proceedings as a whole dictate against permitting a mentally ill to represent themselves.  "[G]iven that defendant's uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling. Moreover, insofar as a defendant's lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution's criminal law objectives, providing a fair trial."

It is the latter reason that inspires some of the more colorful comments in Justice Scalia's spirited dissent.  Joined by Justice Thomas, he points out that the "dignity" affirmed by the right of self-representation is not to prevent "the defendant's making a fool of himself by presenting an amateurish or even incoherent defense" but rather "the supreme human dignity of being master of one's fate rather than a ward of the State - the dignity of individual choice." (Justice Scalia, you may recall, filed a dissenting opinion in the Court's landmark decision in Atkins v. Virginia, 536 U.S. 304 (2002), which held that executing the mentally retarded was cruel and inhuman punishment).

While the majority's decision is to be welcomed for ameliorating some of the tragedy of putting severely mentally ill people on trial in the first place, the dissent raises one important concern, which is that the majority's decision, because it does not include any clear standards as to when a mentally ill person is too ill to represent themselves, risks eviscerating the right of self-representation for the mentally ill altogether (and given the malleability of mental illness diagnoses, could result in significant inroads into the right of self-representation generally). As Justice Scalia warns, "[o]nce the right of self-representation for the mentally ill is a sometime thing, trial judges will have every incentive to make their lives easier . . . by appointing knowledgeable and literate counsel."

This blog welcomes comments on our postings, as well as guest postings on cases and developments of interest.  We will post any contributions that we think deserve a wider audience. 

Richard Willstatter has added some very astute remarks to our postings on recent decisions, Graziano and Confredo.  Click on the entries and scroll down to view them.  Thanks Richard!