For years, persons convicted of certain drug crimes (including convictions from federal court) have had to register under the Kansas Offender Registration Act— if they live, work, or go to school in Kansas. Under K.S.A. 22-4905, the registration period is for 15 years.
Earlier this year, Kansas law changed to allow for these persons (registered “drug offenders”) to petition for removal from the drug offender registry after five years. See K.S.A. 22-4908. The petition is filed in state court. For drug offenders convicted in federal court, “such petition shall be filed in the district court of any county where the offender is currently required to register.” K.S.A. 22-4908(d)(1).
Kansas Legal Services is also offering to help. KLS has created a page to share information and forms for removal from the drug registry. The resource page is available here: https://www.kansaslegalservices.org/node/2530/kansas-drug-offenders-have-way-out-drug-registry
The site includes information about the new law (SB 366) and forms created by the Kansas Judicial Council. For Kansas state convictions, KLS is developing a combined expungement and removal packet, which should be available to self-represented litigants soon (July 10 tentative date).
KLS will also be adding FAQs and other tips for self-represented litigants. They will also take some cases, so do not hesitate to refer clients/former client to KLS for these petitions.
You probably heard or read about Chicago Mayor Lori Lightfoot’s statement earlier this week that only guilty people are charged with crimes: "When those charges are brought, these people [dramatic pause; strong eye contact] are guilty." She quickly added that "of course [dropping eye contact] they're entitled to a presumption of innocence." But she did not herself grant that presumption in her speech.
When prominent politicians give short shrift to the presumption, how can we expect jurors to embrace it? By insisting on timely and clearly worded jury instructions.
By "timely," we mean not only with the preliminary instructions, but also with the final instructions. The Tenth Circuit's Criminal Pattern Jury Instructions do not include a presumption-of-innocence instruction in the standard final instructions. Pattern Instruction 1.05 is titled "presumption of innocence---burden of proof---reasonable doubt." But the body of the instruction does not mention the presumption.
By "clearly worded," we mean instructions advising the jury that the presumption of innocence (1) remains with [the accused] throughout every stage of the trial, including, most importantly, the jury's deliberations; and (2) is extinguished only if all twelve jurors unanimously find that the government has proved [the accused's] guilt beyond a reasonable doubt. Tenth Circuit Pattern Instruction 1.01 includes the presumption of innocence with the "preliminary instructions before trial." But that instruction states only that the accused "is presumed innocent." It does not make clear that the presumption remains in place throughout the trial and into deliberations and is not extinguished unless or until the jurors find the accused guilty unanimously and beyond a reasonable doubt.
For authority on both of these points, check out United States v. Starks, ___ F.4th ___, 2022 WL 1699184 (10th Cir. May 27, 2022), decided by the Tenth Circuit last month. In Starks, a prosecutor told the jurors during closing argument that the presumption of innocence the judge told them about at the beginning of the case "is no longer true"---that it had "been changed" based on the government's evidence. This was an uncorrected misstatement of law that, in combination with other errors, led the Court to reverse Mr. Starks's drug convictions. Three important takeaways from Starks:
- The judge's preliminary instruction on the presumption (before the presentation of evidence) was not timely enough to cure the prosecutor's misstatement (two days later, after the presentation of evidence). 2022 WL 1699184 at *14. Delivering such an instruction before, but not after, the presentation of evidence can be problematic "because of concerns regarding the jury's capacity to remember important legal principles before they deliberate." Id.; see also id. at *15 n.7 (discussing "recency effect" of statements made in close proximity to deliberations).
- The judge's preliminary instruction that the presumption remains with the accused "throughout the trial" was also not clear enough to cure the prosecutor's misstatement. Absent a definition of what procedural events are included in the term "trial," "a reasonable juror could have erroneously concluded . . . that the 'trial' ended with the close of evidence." Id. at *13.
- Lastly, "it is difficult to overstate the importance of the presumption of innocence to the fairness and integrity of our criminal justice system. The presumption of innocence is a bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. . . . [T]he presumption of innocence cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.” Id. at *23 (marks & citations omitted).
Mayor Lightfoot may not be able to put away from her mind all the suspicion that arises from a criminal charge, but let's hope that, with the right instructions, our jurors can and will.
In a recent examination of hundreds of wrongful convictions, “[m]ore than half of those exonerated by post-conviction DNA testing had been wrongly convicted based on flawed forensic science,” according to Brandon Garrett, Duke University professor who wrote Autopsy of a Crime Lab. This is likely because, as one former trial judge described his experience, “when forensics experts testified, the jury hung on their every word.”
Think about how our cases rest on forensic science: DNA, fingerprints, computer analyses, firearms, toolmarks, and the list goes on. The government relies on forensic evidence to lend credibility to lay witnesses who may be compromised by inconsistent statements or bought off by cooperator deals. Yet all too often that evidence is seriously flawed and, at the same time, unchallenged by the defense.
Barbara Bradley Hagerty of The Atlantic surveyed the phenomena of corrupted forensic analysts and systemic flaws in crime labs in her May 12, 2022 article, Did James Parsons Kill His Wife? Hagerty’s focus is on Ohio Bureau of Criminal Investigation forensic analyst, G. Michelle Yezzo, later discredited when the Innocence Project obtained her lengthy (400+ pages) personnel file.
Yezzo’s biases came to light because of her personal and personnel problems. But as Hagerty points out, her career was not that unusual:
It highlights how tenuous many forensic findings can be; how easy it is for prosecutors to make them appear solid to a jury; how closely some analysts work with law-enforcement colleagues, to the point of alignment; how rarely an analyst’s skills are called into question in court; and how seldom the performance of crime labs is subjected to any true oversight. All of this combines to create a dangerous prosecutorial weapon.
The article also reviews other now familiar forensic lab debacles, including within the FBI, Harris County, and Massachusetts, where the government dismissed convictions in more than 20,000 cases because chemist Annie Dookhan falsified reports and “dry labbed.” (Dry labbing is reporting without actually conducting the tests.) From this review, Hagerty identifies three primary flaws in criminal forensic science:
- Some common forensic methods “have not been rigorously evaluated.”
- Most labs are not independent but “tucked into police departments” or law enforcement agencies.
- The quality of the work done in crime labs is almost never audited.
The first point falls squarely within the realm of the defense. This is why we have Daubert, Rule 16, FRE 702, 703, and 704. We have the tools to demand rigorous evaluation if we will use them. The second point also belongs to the defense because it is classic impeachment—identifiable biases such as the source of funding or pressure from law enforcement to secure convictions. And the possibility of cognitive bias is rich for examination. For example, “forensic examiners analyzing a DNA mixture in a gang-rape case were far more likely to discern a possible link to a specific individual if they had already been told that the individual was a suspect.” The third point is ours as well, because it goes to our duty to investigate, to demand discovery, and to independently question laboratory accreditation, protocol, and methodology.
Today, the defense carries an even heavier burden to question and challenge government forensic evidence, because the trial court may be the first and last opportunity to do so. The Supreme Court just decided Shinn v. Martinez, a “devastating outcome,” as Justice Sotomayor describes in her dissent, that gutted much of collateral review of state prosecutions by federal courts under AEDPA. Evidence of flawed forensic science, if revealed too late, has little consequence in our criminal legal system.
Sandra Guerra Thompson, Cops In Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories (Carolina Academic Press 2015).
It's been a while since we've checked in with the Tenth Circuit. We'll start by catching up with a couple of recent Fourth Amendment cases.
Unduly prolonged traffic stop
"[E]ach minute" that an officer spends trying to arrange a dog sniff is time diverted from citation-related tasks. Such actions "necessarily prolong[ ]" a traffic stop and must be supported by reasonable suspicion. So said the Tenth Circuit in United States v. Frazier, 30 F.4th 1165 (10th Cir. 2022).
No reasonable suspicion was present in Frazier:
- duffle bag "the presence of a bag in a vehicle adds nothing to the reasonable suspicion calculus"
- air freshener "no [reasonable suspicion] inference can be drawn from the presence of an air freshener bottle that does not appear to have been in use" (noting trooper's testimony that he never smelled any deoderizer)
- 4-inch window-opening "we do not think that a reasonable officer would have viewed the partially unrolled window as an effort to conceal the smell of contraband"
- "evasive" responses "at bottom, the trooper's suspicion was based on nothing more than his own subjective interpretation of Mr. Frazier's behavior, which was entirely consistent with that of a driver who, though distracted and mildly annoyed by an arguably invasive question, had absolutely nothing to hide. In other words, the trooper merely had a hunch. As such, his belief that Mr. Frazier's responses were indicative of criminal conduct was not entitled to the deference it received from the district court."
- double IDs "Rather than tie the IDs to some particularized indicia of wrongdoing, the government merely cites the IDs as an 'odd fact' that 'could' have caused the trooper to suspect that something was 'amiss' when considered together with his other observations. . . . This reasoning is far too flimsy to be afforded any weight."
- missing rental agreement "Because Trooper Gibbs diverted from the stop's initial mission to arrange for a dog sniff rather than to establish Mr. Frazier's authority to drive the vehicle, Mr. Frazier's inability to lay hands on the agreement can play no role in our reasonable suspicion analysis."
- rental car "Generally, the fact that a vehicle has been rented, standing alone, does not add to reasonable suspicion unless there are specific facts that make the rental relevant or unusual."
- travel "absent other facts suggestive of criminal wrongdoing, we give no weight to the fact that Mr. Frazier was returning from a trip to the West Coast."
"Reasonable suspicion is a low bar, but it is not that low. Consequently, because the trooper lacked reasonable suspicion to extend the stop by several minutes to arrange for the dog sniff, Mr. Frazier's seizure violated the Fourth Amendment."
Two additional points from Frazier. The government argued that reasonable suspicion could be supplied by the trooper's post-dog-sniff-request search for Mr. Frazier's criminal history. The Tenth Circuit rejected this argument for two reasons. First, "the government does not explain how the information the trooper obtained could have any bearing on our reasonable suspicion analysis as it regards an earlier investigative detour." Second, "the government has failed to show that search was not itself an investigative detour that added time to the traffic stop."
"Probable cause must exist not only for the issuance of a search warrant, but also when it is executed. . . . Probable cause may dissipate simply from the passage of time as evidence becomes stale. . . . But new information can also undermine what had been probable cause." United States v. Topete-Madrueno, 2022 WL 1321765 (10th Cir. May 3, 2022).
The Tenth Circuit reaffirmed these basic principles in Topeta-Madruno. But it also affirmed the denial of suppression in that case despite evidence that the target drug-dealer had moved out of the target stash-house before the warrrant was executed. The task force had "freshen[ed] up" their (months-old) probable cause via surveillance days before obtaining the warrant, and the district court credited the warrant-drafting officer's later testimony that he did not know before he executed the warrant that the target had moved.
The Criminal Justice Act Panel is a group of qualified attorneys selected by a committee of judges and experienced attorneys to represent individuals in federal criminal cases who are financially unable to retain counsel. The appointments are made on a rotating basis; the goal is for each attorney on the general panel to receive about six felony appointments each year. The current attorney hourly rate is $158.
Kansas CJA Panel applications are now being accepted until May 6, 2022. The new three-year term begins on July 1, 2022. Qualifications for panel members can be found in the district’s CJA Plan at section IX(C)(2) which can be found here. First time applicants should use the application form here; members currently on the panel should use the reapplication form here.
If you have any questions about the application process or the CJA program in general, please contact Laura Shaneyfelt, CJA Resource Counsel, at email@example.com or 316-761-3652.
Tables are flexible tools that can be used for many purposes. I use them so frequently that I've added Word's insert-table button to my Quick Access Toolbar. I've used tables in motions and briefs to show guidelines calculations; compare/contrast statutes or cases; list counts of conviction by count number, statute, conduct, and date; and to set out where in the record a series of objections was raised and ruled on in the district court. Here's the Tenth Circuit responding to this latter effort with a table of its own (see page 19).
You can format text within a Word table just as you do within a paragraph, aligning it left, right, or center, and using all of Word’s font tools. Click on a table to reveal tabs for Table Tools (Design, Layout) in the ribbon. Use those tools to adjust the table settings, manage borders, and manage the table cells.
Two quick tips:
To make a header row repeat on subsequent pages, click anywhere in the row, right-click, select Table Properties/Row, and check the box next to “Repeat as header row at the top of each page.”
To prevent cells from splitting across page breaks, select the entire table by clicking on it once, and then clicking on the little square that appears in the top left corner. Then right-click, select Table Properties/Row, and uncheck the box next to “Allow row to break across pages.”
In United States v. Chatrie, E.D. Va. 19-cr-00130, D.E. 220 (March 3, 2022), the district court found a geofence warrant unconstitutional when it was used to identify a bank robbery suspect. Of course, Leon’s good-faith exception then robbed the suspect of constitutional protection. But still, Chatrie is a rich case with much to offer on geofence technology, Google operations, and the “ongoing efforts to apply the tenets underlying the Fourth Amendment to previously unimaginable investigatory methods.”
What is a geofence warrant? “Google (and others) have begun collecting detailed swaths of location data from their users. Law enforcement has seized upon the opportunity presented by this informational stockpile, crafting ‘geofence’ warrants that seek location data for every user within a particular area over a particular span of time.” A geofence can also be set to alert when a particular device with GPS enters or leaves a defined area. Here, the warrant was used to identify 19 users and then track their location data for a two-hour period.
Is geofence creepily powerful information? An individual user’s location can be logged up to 720 times in a single day, within three meters and even measures elevation, such as whether the user was on a building’s first or second floor. Once a user opts into Location History (LH), “Google is ‘always collecting’ data and storing all of that data” even “if the person is not doing anything at all with [their] phone.” But Google estimates that LH offers a “68 percent likelihood that a user is somewhere inside” the confidence interval. And “Web and App Activity collects a wider variety of information than Location History.”
Are geofence warrants common? Yes, and increasingly so. While there is little caselaw on the subject (this is why Chatrie is important), in 2019 “Google received around 9,000 total geofence requests.” (The decision differentiates between requests and warrants). Geofence warrants comprise over twenty-five percent of all warrants Goggle receives in the United States. In response, Google established a three-step process for responding to warrants.
Was Google interested in this case? Why, yes, Google really wanted to have a say here, filing an amicus brief and providing testimony that:
- Location History is not a business record, but is a journal stored primarily for the user’s benefit and is controlled by the user. (Checkmark for expectation of privacy.)
- LH information “can often reveal a user’s location and movements with a much higher degree of precision than [Cell Site Location Information].”
- A geofence warrant is certainly a “search within the meaning of the Fourth Amendment,” because users “have a reasonable expectation of privacy in the LH information, which the government can use to retrospectively reconstruct a person’s movements in granular detail.”
Was this geofence warrant unconstitutional? Yes. The court found:
- Google provided the government “an almost unlimited pool from which to seek location data” enabling police to retrace a person’s—or 19 persons’–whereabouts.
- People other than criminal defendants “have no functional way to assert their own privacy rights.”
- Regarding Google’s three-step plan, “Fourth Amendment protections should not be left in the hands of a private actor.”
- A user does not waive constitutional protection by using LH: “a user simply cannot forfeit the protections of the Fourth Amendment for years of precise location information by selecting ‘YES, I’M IN’ at midnight.”
- “The geofence warrant fails to establish particularized probable cause to search every google user within the geofence"; and
- It would be hard to draft a particularized warrant for this data; but
- Leon, because . . . . Leon.
Has a geofence warrant been considered in the District of Kansas? Yes, considered and rejected and cited in Chatrie. In In the Matter Of The Search Of Information That Is Stored At The Premises Controlled By Google, Llc, 542 F.Supp.3d 1153 (D. Kan. 2021), Magistrate Judge Mitchell rejected a warrant that sought geofence data “from an area surrounding the alleged crime location, which is a sizeable business establishment, during a one-hour period on the relevant date.” We blogged about Judge Mitchell’s order here.
What do ED Virginia and D Kansas have in common? The issuing state magistrate judge was not a lawyer, which is also allowed in Kansas’s state court. But unlike Virginia, which at least requires a bachelor’s degree from an accredited institution, Kansas only requires a high school degree. Chatrie’s magistrate judge’s brief attention to this complicated warrant was considered, as was his qualification to serve as magistrate. This non-lawyer, three years out of college had served only three non-probationary months “before he signed this sweeping and powerfully intrusive Geofence Warrant.” But this did not amount to an exception of Leon.
What else? Aside from just the wealth of technological knowledge and analysis in this decision, it is a good guide for discovery requests, including the communications between law enforcement and Google as they apparently negotiate the terms of the warrant production.
Other value of this decision? Instructions on how to turn off and delete your phone's location history. Maybe take time to do this before writing your motion.
When inserting images, tables, maps, graphs, timelines, sound, or video into a motion or brief, consider the following:
- Is the insert consistent with court rules and e-filing system limitations? Be sure to keep images within required margins. Words in an inserted image may count towards your word limit if you are relying on the image to convey the substance of the text. Multimedia inserts may render your document too large to file (or not acceptable regardless of size; we have successfully filed motions with embedded sound and video clips in D. Kan., but not (yet!) in the Tenth Circuit).
- Does the insert explain or persuade better than words alone?
- Is the image or other insert being presented in an ethical, non-misleading fashion? When using exhibits, display the entire exhibit, with exhibit number, or else explain why/how the exhibit has been excerpted and direct the reader to the full exhibit in the record. When using a graphic to report data, acknowledge what data is missing and how it might affect the analysis.
- Does the insert contain any sealed information or personal identifiers subject to redaction? Is it part of the record (or subject to judicial notice)? Does its use otherwise comply with the rules of the court?
- Is the insert disturbing or offensive? Will it appear to have no substantial purpose other than to embarrass a person depicted? Before inserting graphic images, ask whether their persuasive value outweighs the risk that the reader will be offended at being exposed to them; consider using a black-and-white version to reduce the impact (but let the reader know whether/where a color version is available); let the reader know what’s coming a page in advance (“In the autopsy photos (see photos next page), it is evident that . . . .”).
- Has the insert been properly introduced to the reader by the text, or can it speak for itself? Is the provenance of the insert (including any data) clear?
- Does the insert look good on the page with the surrounding text? Learn how to use Word’s text-wrapping tool; watch for tables that split across page breaks (more on that in our next post); and make sure your graphics convert as expected into your final PDF document.
- Does the insert work both on the screen and in print (including in black and white)? If it doesn’t work in print, does the text explain what the paper reader is missing?
- Is data presented using colors that are easily distinguishable by colorblind readers?
- Does the data-to-ink ratio favor the data, or is the data obscured by chart junk? Consider repackaging data that, for instance, the Sentencing Commission has displayed in pie charts or other ink-heavy formats.
Next up: A few technical pointers for working with images and tables.
It's great to practice law in the 21st century, isn't it? As writers, we have an amazing set of digital tools literally at our fingertips. We want to take advantage of those tools to help our readers navigate our writing, visualize our evidence, and process our data. But what do our readers want? A couple of years ago, Arkansas Supreme Court Associate Justice Rhonda Wood and her law clerk Brian Johnston tried to find out. See Rhonda K. Wood & Brian Johnston, See How We Read, 24 Green Bag 2d 227 (2021). They surveyed supreme court judges and justices across the country about their reading practices. Their sample size was small (96), and the results were pre-pandemic, but they nonetheless serve as a reminder to us that we are still writing for both digital and paper readers. Fifty-four percent of the judges and justices who responded said that they still read on paper.
And so while we're taking advantage of all of our fun digital tools, we need to be sure that we're not leaving our paper readers behind. And while we're thinking about our paper readers, we need to remember the unique challenges of digital reading (distractibility, eye strain, navigation challenges).
Over the next couple of weeks, I'm going to share some digital tools and ideas that I hope will help us address the needs of both our paper and digital readers, and improve the persuasive power of our motions and briefs.
Do you have clients who are headed to prison?
Don't let them go unprepared.
This Thursday, February 24, 2022, from 3 p.m. to 5 p.m. via Zoom, US Probation Kansas will be holding its quarterly orientation program for people facing federal prison time. Clients, family, counsel, and staff members are encouraged to attend.
Among other things, attendees will learn (or be reminded of):
- What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
- How to self surrender;
- What to take (and what not to take) to prison;
- What programs are available in prison (educational, vocational, religious, mental health, medical);
- What to expect with respect to visitation, phone calls, email, etc.; and
- How federal prisons help prepare clients for release.
The orientation will be offered again on May 12, 2022 (KCK if in person), August 11, 2022 (KCMO if in person) and November 3, 2022 (KCK if in person).
For access to the Zoom link or answers to questions, email Supervisory US Probation & Pretrial Services Officer Sara Valdez-Hoffer at Sara_Valdez_Hoffer@ksp.uscourts.gov.