Panel Discussion “Ethical Issues Confronting Criminal

Moderator: H. Michael
Sokolow, First Asst Federal Public
Defender,
Southern District of Texas
Panelists:
* Evan A. Jenness, Esq.,
Law Offices of Evan A. Jenness,
Santa Monica, CA
* D. Majeeda Snead, Esq.,
Associate Clinical Professor of
Law Loyola University,
New Orleans, LA
* Omodare Jupiter, AFPD,
Southern District of Mississippi
Panel Discussion
“Ethical Issues Confronting
Criminal Defense
Attorneys”
Resources For Analyzing Professional
Responsibility & Ethics Issues in
Criminal Defense Practice1
By Evan A. Jenness
LAW OFFICES OF EVAN A. JENNESS
MAIN STREET LAW BUILDING
2115 MAIN STREET
SANTA MONICA, CALIFORNIA 90405
TEL. (310) 399-3259 FAX (310) 392-9029
www.jennesslaw.com
1
This document is intended to assist criminal defense lawyers in analyzing
professional responsibility and ethics issues on-line, and resolving such issues in ways that promote
the best interests of their clients, protect clients’ rights, and are consistent with counsel’s legal and
ethical obligations. This document does not offer substantive legal advice or create an attorneyclient relationship with any reader. Warning: laws and codes are amended frequently, urls change
often, and cases and ethics opinions may be superseded by subsequent authority. It is critical for
counsel to independently verify the current status of any authorities on which they may rely.
TABLE OF CONTENTS
ANALYZING AN ETHICS ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
FEDERAL LAW ON-LINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S. CONSTITUTION
FEDERAL STATUTES
FEDERAL CASE LAW
FEDERAL RULES
RULES OF FEDERAL COURTS
CALIFORNIA LAW ON-LINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CALIFORNIA CONSTITUTION
CALIFORNIA STATUTES
CALIFORNIA RULES OF PROFESSIONAL CONDUCT
CALIFORNIA CASE LAW & STATE BAR COURT OPINIONS
ETHICS OPINIONS OF COPRAC
RULES OF THE STATE BAR OF CALIFORNIA
CALIFORNIA RULES OF COURTS
NATIONWIDE SOURCES ON-LINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PATHFINDERS
CASE LAW REGARDING ETHICS
TREATISES
NATIONAL CODES OF CONDUCT
STATE CODES OF CONDUCT & ETHICS SOURCES
STATE ORGANIZATIONS’ ETHICS OPINIONS
NATIONAL, REGIONAL AND LOCAL ORGANIZATIONS
BLOGS & OTHER ETHICS SOURCES ON-LINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
JUDICIAL ETHICS ON-LINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1
Analyzing an
Ethics Issue . . . .
Issue?
Is there a
Constitutional
provision, statute
and/or rule of
professional
conduct that applies?
Any relevant case law in
the jurisdiction?
Any relevant local rules?
Any opinions of local or regional ethics
committees?
What do treatises & national ethics authorities
have to say about the issue?
What strategy will best resolve
the issue consistent with counsel’s legal and ethical
obligations and duties to the client, tribunal,
other counsel and third parties?
FEDERAL LAW ON-LINE
U.S. CONSTITUTION
U.S. Const., Amen. VI (right to assistance of counsel), XIV http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentvi
FEDERAL STATUTES
U.S. Code, Title 18 http://www.access.gpo.gov/uscode/title18/title18.html
See, e.g, Sections:
2 (principals, aiding & abetting)
3 (accessory after the fact)
4 (misprision of felony)
371 (conspiracy)
401-03 (contempt of court)
1001 (fraud, false statements)
1341 (mail fraud)
1343 (wire fraud)
1510 (obstruction of justice)
1621-23 (perjury, subornation, false declarations)
1956-57 (money laundering)
FEDERAL CASE LAW
The federal libraries of Westlaw and Lexis contain case law adjudicating ethics issues
from the U.S. Supreme Court, Circuit Courts of Appeals and U.S. District Courts.
FEDERAL RULES
Federal Rules of Appellate Procedure (Dec. 1, 2007) http://www.law.cornell.edu/rules/frap/
See, e.g., Rule 46 (attorney admission, suspension, disbarment)
3
Federal Rules of Civil Procedure (Dec. 1, 2007) - http://www.law.cornell.edu/rules/frcp/
See, e.g., Rules:
4.1 (service, enforcement of civil contempt orders)
11 (representations to court; sanctions)
16(f) (pretrial conference violation; sanctions)
26(b)(3) (attorney work-product)
37(b) (discovery order violation; contempt)
45(e) (subpoena violation; contempt)
56(g) (summary judgment, bad faith affidavit; contempt)
Federal Rules of Criminal Procedure (Dec. 1, 2007) http://www.law.cornell.edu/rules/frcrmp/
See, e.g., Rules:
42 (contempt)
44 (appointment of counsel)
Federal Rules of Evidence (Dec. 1, 2006) http://www.uscourts.gov/rules/Evidence_Rules_2007.pdf
See, e.g., Rule 501 (attorney-client privilege)
RULES OF FEDERAL COURTS
Local Rules of the U.S. Supreme Court, Courts of Appeals, District Courts
See, e.g.,
Ninth Circuit Court of Appeals, Local Rule 46-2 (suspension, disbarment or
discipline) http://www.ca9.uscourts.gov/ca9/Documents.nsf/467208b8514252e58825643e00
658d33/$FILE/FRAP_0707.pdf
Standards for Professional Conduct Within the Seventh Federal Judicial Circuit http://www.ca7.uscourts.gov/Rules/rules.htm#standards
4
CALIFORNIA LAW ON-LINE
CALIFORNIA CONSTITUTION
Cal. Const., art. I, Sec 15 (right to counsel) http://www.leginfo.ca.gov/.const/.article_1
CALIFORNIA STATUTES
Cal. Bus. & Prof. Code, Sections 6000 et seq. (The State Bar Act) http://www.calsb.org/calbar/pdfs/ethics/2007_State-Bar-Act.pdf
See, e.g., Sections:
6068 (15 duties of attorney)
6125-6133 (unlawful practice of law)
6127 (contempt of court)
6128 (wilful deceit, collusion, delay; misdemeanor)
6129 (buying claims)
6148 (written retainer)
Cal. Code Civ. Procedure http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp&codebody=&hits=20
See, e.g., Sections:
177.5 (violation of court order)
284-86 (replacement of counsel)
209-22 (civil contempt)
Cal. Evidence Code http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=evid&codebody=&hits=20
See, e.g., Rules:
916-17 (lawyer-client privilege where no person authorized to claim privilege)
950-62 (lawyer-client privilege)
Cal. Health & Safety Code http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=hsc&codebody=&hits=20
See, e.g., Sections 11470, 11488.4 (forfeiture of tainted retainer)
5
Cal. Penal Code http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=pen&codebody=&hits=20
See, e.g., Sections:
95 (improper contacts with juror)
118-131 (perjury, subornation)
132-41 (falsifying or destroying evidence, bribing or intimidating witness)
166 (criminal contempt)
686 (right to counsel)
987.05 (unpreparedness without good cause; contempt)
1054.5(b) (failure to provide discovery; contempt)
CALIFORNIA RULES OF PROFESSIONAL CONDUCT
California Rules of Professional Conduct http://calbar.ca.gov/calbar/pdfs/rules/Rules_Professional-Conduct.pdf
See, e.g., Rules:
2-100 (contacts with represented party)
2-200 (referral fees/fee splitting)
3-100 (confidential information of client)
3-110 (failing to act competently)
3-120 (sexual relations with client)
3-210 (advising the violation of law)
3-300 (avoiding interests adverse to client)
3-310 (avoiding the representation of adverse interests)
3-500 (keeping client reasonably apprised)
3-510 (communicating settlement offers to client; criminal and civil matters)
3-700 (termination of employment; mandatory and permissive withdrawal)
4-200 (fees)
5-100 (threats of prosecution to obtain civil advantage)
5-120 (trial publicity)
5-200 (candor to tribunal)
5-210 (attorney as witness)
5-220 (suppression of evidence)
5-300 (ex parte communications with court)
5-310 (prohibited contact with witnesses)
5-320 (contact with jurors)
6
CALIFORNIA CASE LAW & STATE BAR COURT OPINIONS
The California libraries of Westlaw and Lexis contain case law regarding ethics issues
from the Supreme and appellate courts. California also has a State Bar Court, which
adjudicates misconduct cases and issues opinions that are included in the Westlaw CACS, CAETH-CS and METH-CS (multi-state) libraries, and in the Lexis CABAR library.
ETHICS OPINIONS OF COPRAC
Westlaw‘s CAETH-EO library contains advisory opinions of the California State Bar
Committee on Professional Responsibility & Conduct (“COPRAC”) regarding the propriety
of hypothetical attorney conduct.
RULES OF THE STATE BAR OF CALIFORNIA
Rules of the State Bar of California, the administrative arm of the California Supreme
Court in matters relating to attorney admission and discipline (including, e.g., members’
rights & responsibilities, and disciplinary procedures) http://calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=14045&id=33461
CALIFORNIA RULES OF COURTS
Rules of Court of the California Supreme Court, Courts of Appeal, Superior Court
See www.courtinfo.ca.gov/
California Rules of Court http://www.courtinfo.ca.gov/rules/
See Title 9 (admission, disciplinary proceedings, State Bar review) & e.g., Rules:
2.30 (sanctions for rule violations, civil cases)
3.1030 (sanctions for discovery violations)
California Courts of Appeal, Local Rules http://www.courtinfo.ca.gov/courts/courtsofappeal/
Superior Courts of the State of California, Local Rules http://www.courtinfo.ca.gov/rules/localrules.htm
7
NATIONWIDE SOURCES ON-LINE
PATHFINDERS
ABA Center for Professional Responsibility http://www.abanet.org/cpr/professionalism/home.html - comprehensive library of on-line
ethics resources.
ABA Center for Professional Responsibility http://www.abanet.org/cpr/links.html#States - state-by-state listing of links to
professional responsibility codes, ethics opinions, judicial codes, hotlines and practice
materials.
American Legal Ethics Library http://www.law.cornell.edu/ethics/ – comprehensive library of on-line ethics resources,
including superlative listing by jurisdiction and issue.
Association of Professional Responsibility Lawyers - http://www.aprl.net/links.htm research links to many sources of information regarding professional responsibility and
legal ethics.
National Conference on Professional Responsibility: Resource List http://www.okcu.edu/law/lawlib/staff/pdfs/ABAresearch.pdf links to numerous resources for basic and more advanced research.
CASE LAW REGARDING ETHICS
Westlaw contains multi-state ethics case law in the METH-CS library; use XXETH-CS for
an individual state, where XX is the state’s postal abbreviation. Lexis contains ethics
cases from all states; within a state’s library, the ETHICS file contains cases; the ethics
opinions and cases of 36 states and D.C. are combined in the ETHICS library.
TREATISES
ABA/BNA Lawyers’ Manual on Professional Conduct – available on Westlaw and Lexis
Lexis – A practical guide to the analysis of ethical issues, organized into four main
sections (Practice Guides, Ethics Rules, Current Reports & Ethics Opinions), and
searchable by keyword.
8
Freivogel on Conflicts - http://www.freivogelonconflicts.com/ - Ethics consultant Bill
Freivogel’s guide to conflicts of interest for lawyers.
The Restatement of the Law, 3d – The Law Governing Lawyers – available on Westlaw and
Lexis – Rules of ethics largely drawn from the ABA Model Rules and Model Code,
including citations to court decisions, ABA ethics opinions, treatises, law review articles,
and other authorities.
John M. Burkoff, Criminal Defense Ethics: Law & Liability (2007-08) - Comprehensive
review of criminal defense law and ethics, sold at:
http://west.thomson.com/store/product.aspx?product_id=13512525
John Wesley Hall, Professional Responsibility in Criminal Defense Practice (2005) Comprehensive guidance for criminal defense counsel to resolve ethics issues in practical
ways, sold at: http://west.thomson.com/product/13516342/product.asp
Richard E. Flamm, Lawyer Disqualification: Conflicts of Interest & Other Bases (2003 &
Supp. 2007), sold at: http://www.banksandjordan.com/catalog.html
NATIONAL CODES OF CONDUCT
ABA Model Rules of Professional Conduct (2008) –
http://www.abanet.org/cpr/mrpc/home.html
ABA Standards Relating to the Administration of Justice: The Defense Function
(3d Ed., 1993) - http://www.abanet.org/crimjust/standards/dfunc_toc.html
American College of Trial Lawyers - Codes of Pretrial & Trial Conduct (2004) http://www.actl.com/AM/Template.cfm?Section=All_Publications&Template=/CM/
ContentDisplay.cfm&ContentFileID=59
Code of Conduct for Federal Public Defender Employees http://www.uscourts.gov/guide/vol2/ch2b.html
Standards of Professional Conduct for Attorneys Appearing & Practicing Before the SEC
in the Representation of an Issuer -Title 17 C.F.R. Part 205 http://www.access.gpo.gov/nara/cfr/waisidx_03/17cfr205_03.html
9
STATE CODES OF CONDUCT & ETHICS SOURCES
Westlaw includes states’ professional responsibility codes in a database of court rules;
the identifier is XX-RULES, where XX is the state’s postal abbreviation. Lexis (Legal >
Area of Law - By Topic > Ethics > Find Statutes & Rules > By State) contains the
statutory codes of each state, not just codes of ethics.
Prof. David Hricik’s links to states ethics rules & opinions nationwide http://www.hricik.com/business.html [click on “State Ethics Links”]
Alabama - http://www.alabar.org/ogc/fopList.cfm
Alaska - http://www.alaskabar.org/index.cfm?ID=5359
Arizona - http://www.myazbar.org/Ethics/
Arkansas - http://www.arkbar.com/resources/resources_eth_disc.html
California - http://www.calbar.ca.gov/state/calbar/calbar_home.jsp
[Click on “Attorney Resources” & “Ethics Information”]
Colorado - http://www.cobar.org/static/comms/ethics/fo_nondx.htm
Delaware - http://www.dsba.org/AssocPubs/ethics.htm
District of Columbia - http://www.dcbar.org/for_lawyers/ethics/legal_ethics/index.cfm
Florida - http://www.flabar.org [click “Professional Practice” or "Ethics Opinions"]
Georgia - http://www.gabar.org/ethics/advisory_opinions
Hawaii - http://www.hawaii.gov/ethics/opinions/AO.htm
Indiana - http://www.inbar.org/content/legalethics/legalethics2.asp
Kentucky - http://www.uky.edu/Law/Library/ky_ethics_opinions.html
Maine - http://www.mebaroverseers.org/index.asp [click on "Ethics Opinions"]
Massachusetts - http://www.massbar.org/for-attorneys/publications/ethics-opinions
Michigan - http://www.michbar.org/opinions/ethicsopinions.cfm
Minnesota - http://www.courts.state.mn.us/lprb/opinions.html
Mississippi - http://www.msbar.org/ethic_opinions.php
Missouri - http://www.mobar.org/ [click “Professionalism” or "Ethics Opinions"]
Montana - http://www.montanabar.org/ [click on "Ethics Opinions"]
Nebraska - http://www.supremecourt.ne.gov/rules/pdf/profresp-31.pdf and
http://www.nebar.com/ethics/index.htm [click on "Ethics Opinions"]
Nevada - http://www.nvbar.org/Ethics/Ethics_Opinions.htm
New Hampshire - http://www.nhbar.org/publications/ethics/default.asp
New Jersey - http://lawlibrary.rutgers.edu/ethics/search.shtml
New Mexico - http://www.nmbar.org/Template.cfm?Section=Opinion_Summaries
New York - http://www.nysba.org/ [Click on “For Attorneys”]
North Carolina - http://www.ncbar.com/ethics/eth_articles.asp
10
North Dakota - http://www.sband.org/Ethics/
Ohio Supreme Court - http://www.sconet.state.oh.us/BOC/default.asp
Oklahoma - http://www.okbar.org/ethics
Oregon - http://www.osbar.org/ethics/ethicsops.html
Pennsylvania - http://www.padisciplinaryboard.org/documents/Pa%20RPC.pdf
Rhode Island - http://www.courts.state.ri.us/supreme/ethics/defaultethics.htm
South Carolina - http://www.scbar.org/member/ethics.asp
South Dakota - http://www.sdbar.org
Tennessee - http://www.tbpr.org/Attorneys/EthicsOpinions/
Texas - http://www.txethics.org/reference_opinions.asp
Utah - http://www.utahbar.org/opinions/index.html
Vermont - http://www.vtbar.org/static/vtbar/ [Click on “Attorney Resources” &
“Advisory Ethics Opinions”]
Virginia Continuing Legal Education - http://www.vacle.org/leo.htm
Washington - http://www.wsba.org/lawyers/ethics/
West Virgina - http://www.wvbar.org/BARINFO/odc/LEIs/chrono_index.htm
Wisconsin - http://www.wisbar.org/ethop/
STATE ORGANIZATIONS’ ETHICS OPINIONS
Westlaw contains ethics opinions from 20 states. The identifier is XXETH-EO, where
XX is the state’s postal abbreviation. Lexis contains ethics opinions from the National
Reporter on Legal Ethics and Professional Responsibility.
NATIONAL, REGIONAL AND LOCAL ORGANIZATIONS
American Bar Association - http://www.abanet.org/cpr/pubs/ethicopinions.html –
Summaries of Formal Ethics Opinions of the ABA’s Standing Committee on Ethics and
Professional Responsibility (including links to opinions).
California - Los Angeles County Bar Ass’n http://www.lacba.org/showpage.cfm?pageid=427 and
http://www.lacba.org/showpage.cfm?pageid=4320
California - Orange County Bar Ass’n - http://www.ocbar.org [Click on “Ethics Opinions”]
California - San Diego County Bar Ass’n http://www.sdcba.org/ethics/ethicsopinons_toc.html
11
California - San Francisco Bar Association - http://www.sfbar.org/ethics/index.aspx
National Association of Criminal Defense Lawyers –
http://www.nacdl.org/private.nsf/Committees/ethics?OpenDocument –
Ethics Opinions of the NACDL Ethics Advisory Committee, frequently asked questions,
and advice regarding the analysis of ethics questions for criminal defense counsel.
New York City Bar Ass’n - http://www.abcny.org [click on "Reports/Publications"]
New York County Lawyers Ass’n - http://www.nycla.org/ [click on "News and Publications"
then "Ethics Opinions"]
New York - Nassau County Bar Ass’n - http://www.nassaubar.org/ethic_opinions.cfm
New York - Suffolk County Bar Ass’n - http://www.scba.org [click on "Ethics Opinions"]
New York State Defender’s Organization, Ethics Resources http://www.nysda.org/html/ethics_resources.html
Ohio - The Cleveland Law Library Assoc. - Legal Ethics & Prof. Responsibility http://www.clelaw.lib.oh.us/Public/Misc/REGUIDES/guide4B.html
BLOGS & OTHER ETHICS SOURCES ON-LINE
Ethics Opinion Summaries - http://www.mcguirewoods.com/services/leo/ - Attorney Tom
Spahn’s summaries of Virginia and ABA Legal Ethics Opinions (including links to opinions).
LegalEthics.com - http://www.legalethics.com - Prof. David Hricik and Peter Krakaur
focus on ethical issues associated with the use of technology.
Legal Ethics Forum - http://legalethicsforum.typepad.com/blog/ - Profs. John
Dzienkowski, John Steele & Brad Wendel, Eds. Blog & extensive links.
Legal Ethics Research Online and Off: A Workshop http://www.okcu.edu/law/lawlib/staff/pdfs/ABAresearch.pdf
- Steve Young & Lee Faircloth Peoples. Comprehensive tutorial & extensive links.
Legal Profession Blog - http://lawprofessors.typepad.com/legal_profession/ - Profs. S.
Alan Childress, Michael S. Frisch & Jeffrey M. Lipshaw, Eds. Blog & extensive links.
12
sunEthics - http://www.sunethics.com/ – Ethics links for Florida lawyers.
The Boundaries of Legal Ethics and Marketing - http://www.willhornsby.com/ - Attorney
Will Hornsby provides extensive resources on marketing and legal ethics.
JUDICIAL ETHICS ON-LINE
ABA Model Code of Judicial Conduct (2007) –
http://www.abanet.org/judicialethics/ABA_MCJC_approved.pdf
American Judicature Society - http://www.ajs.org/ethics/eth_conduct-orgs.asp – State
organizations charged with investigating allegations of misconduct by state judges.
New York State Commission on Judicial Conduct - http://www.scjc.state.ny.us/ Opinions and other information.
Ninth Circuit - Judicial Misconduct http://www.ce9.uscourts.gov/misconduct/judicial_misconduct.html - Rules, complaint
form, orders.
U.S. Courts – Code of Conduct for United States Judges –
http://www.uscourts.gov/guide/vol2/ch1.html
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ABOUT THE AUTHOR
Law Offices of Evan A. Jenness
Main Street Law Building
2115 Main Street
Santa Monica, CA 90405
Tel. 310.399.3259
Fax 310.392.9029
Evan A. Jenness is a criminal defense attorney with extensive experience in
federal and state courts, and has been named one of the Best Lawyers in America, and a
2008 Southern California Super Lawyer. Her practice is devoted exclusively to
representing individuals and organizations in investigations, pre-trial, trial and appellate
proceedings. Other areas of expertise include extradition, sentencing mitigation and
legal ethics.
She an experienced trial attorney, having tried federal cases involving a wide
variety of complex felony matters, ranging from securities fraud, bank fraud and import
violations, to Internet pornography and narcotics conspiracy.
She has been admitted to the State Bar of California since 1988, and is a member
of the National Association of Criminal Defense Attorneys (Co-Chair, Ethics Advisory
Committee; Board Member); Federal Bar Association (Board Member, Los Angeles
Chapter); Los Angeles County Bar Association (Professional Responsibility & Ethics
Committee); American Bar Association (Southern California Regional White Collar Crime
Committee); and California Attorneys for Criminal Justice.
She obtained her juris doctor degree from Columbia University Law School and
thereafter was a law clerk to the (late) Hon. Harry L. Hupp in the Central District of
California. She is a former deputy federal public defender, and is a periodic lecturer and
author on criminal law and procedure, and professional responsibility.
She welcomes input on the accompanying outline from other members of the legal
community. Please feel free to send suggested additions or revisions to her
([email protected]). Revised copies of this outline are periodically posted on her
website (www.jennesslaw.com).
14
ETHICAL ISSUES CONFRONTING
CRIMINAL DEFENSE ATTORNEYS
by
H. Michael Sokolow
First Assistant Federal Public Defender
Federal Public Defender for the Southern District of Texas
440 Louisiana, Suite 310
Houston, Texas 77002-1634
(713) 718-4600 (voice)
(713) 718-4610 (fax)
[email protected]
STRATEGIES FOR DEFENDING COMPLEX CASES
Administrative Office of the U.S. Courts
Office of Defender Services Training Branch
Los Angeles, California
September 6, 2008
TABLE OF CONTENTS
Defendant’s decisions and defense counsel’s decisions.. . . . . . . . . . . . . . . . . . . . . 1
Prohibition against keeping fruits and instrumentalities of a crime.. . . . . . . . . . . . 9
Attorney-client privilege and the crime-fraud exception... . . . . . . . . . . . . . . . . . . 11
Attorney-client privilege and jointly interviewed prospective clients.. . . . . . . . . 14
Attorney-client privilege and the condition and location of evidence.. . . . . . . . . 15
Prohibition against advising the client of what the defense “should be.”. . . . . . . 16
Discouraging or obstructing communications with a witness.. . . . . . . . . . . . . . . . 16
Prospective witnesses – advice and misrepresentations to third parties.. . . . . . . . 18
Putting the prosecution to its burden of proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Disclosing the whereabouts of the bail jumping client.. . . . . . . . . . . . . . . . . . . . . 22
Impeaching a truthful witness by cross-examination... . . . . . . . . . . . . . . . . . . . . . 27
Calling a witness to testify who will claim a valid privilege... . . . . . . . . . . . . . . . 28
Dealing with the client who intends to commit perjury... . . . . . . . . . . . . . . . . . . . 29
Commenting on a codefendant’s refusal to testify... . . . . . . . . . . . . . . . . . . . . . . . 34
Prohibition against representing two defendants in same case.. . . . . . . . . . . . . . . 35
Revealing attorney-client conversations when accused of wrongdoing.. . . . . . . . 38
Prohibition against appointed counsel’s acceptance of outside payment.. . . . . . . 40
Client’s right to the case file.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
i
TABLE OF CONTENTS - (Cont’d)
Selected legal principles pertinent to appointment of counsel.. . . . . . . . . . . . . . . 43
ii
I.
Certain decisions are the defendant’s and certain decisions are defense
counsel’s.1
A.
Defendant’s decisions after full consultation.
1.
What plea to enter.
2.
Whether to waive a jury trial.
3.
Whether to testify in his or her own behalf.
See ABA Standards for Criminal Justice, § 4-5.2(a), at 199-200
(ABA 3d ed. 1993) [hereinafter cited as “ABA Standards”];
Annotated Model Rules of Professional Conduct, Rule 1.2(a)
(ABA 5th ed. 2003) [hereinafter cited as “AMRPC”]; Texas
Disciplinary Rules of Professional Conduct, Rule 1.02(a)
[hereinafter cited as “TDRPC”]; see also Florida v. Nixon, 543
U.S. 175, 187-92 (2004) (reiterating that “[a] defendant . . . has
‘the ultimate authority’ to determine ‘whether to plead guilty,
waive a jury, testify in his or her own behalf, or take an appeal,’”
but that, when counsel informs the defendant of the strategic
choice to admit guilt in the guilt-innocence phase of a capital trial
and the client is unresponsive, prejudice is not to be presumed in
an analysis for ineffective assistance of counsel); United States v.
Thomas, 417 F.3d 1053, 1056-59 (9th Cir. 2005) (applying Nixon
to a non-capital federal prosecution and assuming that it is
deficient performance to fail to consult with the defendant prior
to conceding guilt, but holding that there was no prejudice under
the test for ineffective assistance of counsel); United States v.
Mullins, 315 F.3d 449, 454-57 (5th Cir. 2002) (holding that the
“decision of whether to testify belongs to the defendant and his
lawyer cannot waive it over his objection,” but that the lawyer’s
improper deprivation of the right to testify, although deficient
performance, was not prejudicial in this particular case); United
1
Although this outline cites numerous cases and various rules and codes of professional ethics,
the author encourages you to consult and rely on the rules and precedent of your particular jurisdiction.
1
States v. Holman, 314 F.3d 837, 840-45 (7th Cir. 2002) (holding
that performance of attorney who conceded client’s guilt without
client’s consent from the beginning of trial on one of many counts
of drug trafficking was constitutionally deficient, but that the
defendant suffered no prejudice as a result), cert. denied, 538 U.S.
1058 (2003); Sexton v. French, 163 F.3d 874, 881 (4th Cir. 1998)
(noting that every circuit to have addressed the matter has found
that the decision of whether to testify is personal and must be
waived by the defendant), cert. denied, 528 U.S. 855 (1999);
United States v. Ortiz, 82 F.3d 1066 (D.C. Cir. 1996) (holding
that a per se rule requiring court to inquire whether defendant
knowingly and intelligently was waiving his right to testify would
interfere with the attorney-client relationship, but that, if the court
is alerted to a problem with the attorney-client relationship, court
may have duty to ask defendant whether waiver was voluntary);
United States v. Pennycooke, 65 F.3d 9 (3d Cir. 1995) (court
ordinarily should not inform defendant of right to testify or ask
defendant whether he is waiving the right voluntarily, because
this could influence defendant to waive right not to testify);
Nielsen v. Hopkins, 58 F.3d 1331 (8th Cir. 1995) (counsel’s
having psychiatrist testify at guilt-innocence phase of murder trial
that defendant was intoxicated at the time of the killing did not
amount to conceding guilt, because intoxication was a defense to
first-degree murder); Nichols v. Butler, 953 F.2d 1550 (11th Cir.
1992) (defendant was denied effective assistance of counsel
where attorney, for purely strategic (non-perjury-related) reasons,
threatened to withdraw if defendant testified); United States v.
Teague, 953 F.2d 1525, 1532 (11th Cir.) (right to testify is
personal and fundamental and cannot be waived by counsel or the
court), cert. denied, 506 U.S. 842 (1992); Stano v. Dugger, 921
F.2d 1125, 1146 (11th Cir.) (even if counsel is retained, defendant
does not relinquish decision on what plea to enter), cert. denied,
502 U.S. 835 (1991); Miller v. Angliker, 848 F.2d 1312 (2d Cir.)
(defendant’s choice to plead guilty, not guilty, or not guilty by
reason of insanity), cert. denied, 488 U.S. 890 (1988); Francis v.
Spraggins, 720 F.2d 1190 (11th Cir. 1983) (trial counsel cannot
concede guilt at guilt-innocence phase of capital murder trial),
2
cert. denied, 470 U.S. 1059 (1985); Wiley v. Sowders, 647 F.2d
642 (6th Cir.) (counsel cannot concede guilt without obtaining
consent to strategy), cert. denied, 454 U.S. 1091 (1981); see
generally Godinez v. Moran, 509 U.S. 389 (1993) (in context of
competency standard, court mentions several decisions defendant
must be able to make: whether to waive jury trial, whether to
testify, what defense to use).
4.
Whether to appeal. See ABA Standards § 4-8.2(a), (b), at 237;
see also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(reiterating that it is professionally unreasonable for a lawyer to
disregard a client’s direction to file a notice of appeal); Don v.
Nix, 886 F.2d 203 (8th Cir. 1989) (counsel cannot waive
defendant’s right to appeal).
a. Indeed, disregarding the client’s direction to file a notice of
appeal is professionally unreasonable even “in a case where
the defendant signed, as part of his plea agreement, a limited
waiver of his right to appeal his sentence.” Gomez-Diaz v.
United States, 433 F.3d 788, 790, 791-93 (11th Cir. 2005); see
also United States v. Poindexter, 492 F.3d 263, 271-73 (4th
Cir. 2007); United States v. Tapp, 491 F.3d 263, 265-66 (5th
Cir. 2007); Campusano v. United States, 442 F.3d 770, 771-72
(2d Cir. 2006); United States v. Garrett, 402 F.3d 1262, 126667 (10th Cir. 2005); But see Nunez v. United States, 495 F.3d
544, (7th Cir. 2007) (expressing doubt and disagreeing with
the circuits that hold that a lawyer has a duty to file a notice of
appeal even when the client has waived the right to appeal, but
ultimately deciding the ineffective assistance of counsel claim
on the ground that the client waived collateral attack), petition
for cert. filed, 76 U.S.L.W. 3349 (U.S. Dec. 18, 2007) (No. 07818).
b. This is true “regardless of whether [the defendant] can identify
any arguably meritorious grounds for appeal that would fit one
of the exceptions contained in his appeal waiver.” GomezDiaz, 433 F.3d at 793; see also Campusano, 442 F.3d at 7733
75; Garrett, 402 F.3d at 1267.
c. Thus, when a defendant who has waived certain appellate
rights as part of a plea agreement requests that defense counsel
file a notice of appeal, counsel should file the notice of appeal
and should subsequently brief the validity of the waiver of
appellate rights and file a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), when there is no basis to
contest the validity of the waiver. See United States v.
Gomez-Perez, 215 F.3d 315, 319-20 (2d Cir. 2000); see also
Gomez-Diaz, 433 F.3d at 793 (defendant entitled to out-oftime appeal if he requested that defense counsel file notice of
appeal, even where he waived certain appellate rights);
Garrett, 402 F.3d at 1267 (same); cf. United States v. Story,
439 F.3d 226, 230 (5th Cir. 2006) (holding that appeal waivers
do not deprive the appellate court of jurisdiction).
d. One court has held that counsel’s failure to remain reasonably
available during the ten-day window for filing a notice of
appeal constituted ineffective assistance of counsel. See
Corral v. United States, 498 F.3d 470, 473-75 (7th Cir. 2007).
But see Otero v. United States, 499 F.3d 1267, 1271 (11th Cir.
2007) (holding that counsel had no constitutional obligation
to consult with client about whether to appeal where the client
had agreed to a broad waiver of appeal and did not
communicate to counsel a desire to appeal); but see also
United States v. Parsons, 505 F.3d 797, 799-800 (8th Cir.
2007) (holding that where counsel did not hear defendant’s
request to appeal “the relevant inquiry is whether counsel’s
failure to consult about an appeal was ineffective assistance,”
and finding that it was not).
5.
Whether to represent himself or herself. See Faretta v. California,
422 U.S. 806 (1975) (court cannot force defendant to accept
appointed attorney); see also McKaskle v. Wiggins, 465 U.S. 168
(1984) (right to self-representation not violated when standby
counsel does not interfere with control of defense or appearance
4
of self-representation); United States v. Wilkes, 20 F.3d 651 (5th
Cir. 1994) (although pro se pleadings are construed liberally, pro
se litigants must still comply with Federal Rules of Appellate
Procedure); In re Hipp, Inc., 5 F.3d 109, 114 (5th Cir. 1993)
(request to proceed pro se must be clear and unequivocal); but see
Martinez v. Court of Appeals of California, 528 U.S. 152, 163
(2000) (holding that a defendant does not have a Faretta-type
constitutional right to represent self on appeal, as opposed to at
trial).
6.
B.
The objective and general methods of representation. AMRPC,
Rule 1.2(a) & Comment; TDRPC, Rule 1.02(a)(1); see, e.g.,
Nixon, 543 U.S. at 187 (reiterating that counsel is required to
consult with the defendant on “‘important decisions,’ including
questions of overarching defense strategy”); United States v.
Felix-Rodriguez, 22 F.3d 964 (9th Cir. 1994) (counsel could not
waive defendant’s right to be present when taped conversations
were replayed to jury during deliberations); Carter v. Sowders, 5
F.3d 975 (6th Cir. 1993) (counsel could not waive defendant’s
confrontation rights without defendant’s consent; granting habeas
due to admission at trial of videotaped deposition of informant
that defendant did not attend and that counsel left midway
through), cert. denied, 511 U.S. 1097 (1994); Larson v. Tansy,
911 F.2d 392 (10th Cir. 1990) (counsel could not waive
defendant’s right to be present during trial; defendant’s silence
when counsel made request did not constitute waiver).
Strategic decisions to be made by lawyer after full consultation.
1.
Which witnesses to call.
2.
Whether and how to conduct cross-examination.
3.
Which jurors to accept or strike. See, e.g., United States v. Boyd,
86 F.3d 719 (7th Cir. 1996) (defendant did not have right to
determine how to use peremptory challenges).
5
4.
What trial motions to make.
5.
All other strategic or tactical decisions. See ABA Standards, §
4-5.2(b), at 200; AMRPC, Rule 1.2(a) & Comment; TDRPC, Rule
1.02, Comment 1 (a lawyer has very broad discretion to determine
technical and legal tactics, subject to certain wishes of the client
regarding expenses and concern for third parties who might be
adversely affected); see also Gonzalez v. United States, No. 0611612, 2008 WL 2001954, at *5 (U.S. May 12, 2008) (holding
that “acceptance of a magistrate judge at the jury selection phase
is a tactical decision” and, therefore, that “express consent by
counsel suffices to permit a magistrate judge to preside over jury
selection in a felony trial, pursuant to the authorization in [28
U.S.C.] § 636(b)(3)”); Nixon, 543 U.S. at 187-92 (holding that,
although counsel has a duty to consult with the defendant on
questions of overarching defense strategy, when the client is
unresponsive during consultation, counsel may proceed without
obtaining explicit consent of the client); Darden v. Wainwright,
477 U.S. 168 (1986) (not ineffective assistance of counsel to
introduce no mitigating evidence at penalty phase because
government’s rebuttal evidence would have been damaging);
Haynes v. Cain, 298 F.3d 375 (5th Cir.) (en banc) (holding that
defense counsel’s concession that defendant was guilty of
second-degree murder was a strategic attempt to avoid the death
penalty rather than a failure to subject the prosecution’s case to
meaningful adversarial testing, that it thus did not raise
presumption of prejudice, and that the failure to obtain the
defendant’s consent before making this concession did not
prejudice defendant under Strickland v. Washington, 466 U.S.
668 (1984)), cert. denied, 537 U.S. 1072 (2002); Sexton, 163 F.3d
at 885 (stating that some decisions are personal and cannot be
made without the client’s consent, but that other decisions, such
what evidence to introduce, what objections to make, and what
pretrial motions to file, including a motion to suppress evidence,
are tactical and can be made without the client’s consent);
Government of Virgin Islands v. Weatherwax, 77 F.3d 1425 (3d
Cir. 1996) (counsel did not have to follow client’s request to
6
bring it to court’s attention that juror had been seen with
newspaper account of trial); Brecheen v. Reynolds, 41 F.3d 1343,
1368-69 (10th Cir. 1994) (counsel must discuss mitigation
strategy with capital murder defendant, but decision whether to
present mitigating evidence is counsel’s), cert. denied, 515 U.S.
1135 (1995); United States v. McGill, 11 F.3d 223 (1st Cir. 1993)
(whether to make futile objection to admission of prejudicial film
clip, or try to dilute its impact by having entire film shown, was
counsel’s decision); Drew v. Collins, 964 F.2d 411, 423 (5th Cir.
1992) (decision not to object to closing argument in capital
murder prosecution was a matter of trial strategy and was not
proof of ineffective assistance of counsel), cert. denied, 509 U.S.
925 (1993); Poole v. United States, 832 F.2d 561 (11th Cir. 1987)
(stipulation to easily provable matters does not require
defendant’s consent), cert. denied, 488 U.S. 817 (1988); Graham
v. Mabry, 645 F.2d 603 (8th Cir. 1981) (voir dire and challenges
are well within function of trial counsel); United States v.
Stephens, 609 F.2d 230 (5th Cir. 1980) (stipulation to evidence
and waiver of right of confrontation acceptable if client does not
dissent and decision is legitimate trial tactic or prudent trial
strategy); cf. Rompilla v. Beard, 545 U.S. 374, 380-93 (2005)
(holding that petitioner received ineffective assistance of counsel
at his capital sentencing due to counsel’s failure to investigate
mitigating evidence regarding traumatic childhood and mental
health problems when, if counsel only had reviewed the court file
on petitioner’s prior conviction, counsel would have found leads
on mitigation); Lowery v. Collins, 996 F.2d 770 (5th Cir. 1993)
(distinguishing defense counsel’s failure to call a witness from the
waiver in Stephens).
6.
Counsel on appeal has no constitutional duty to raise every
nonfrivolous issue requested by defendant. See Jones v. Barnes,
463 U.S. 745 (1983); see also Moss v. Collins, 963 F.2d 44 (5th
Cir. 1992) (after filing an Anders brief, counsel need not send
defendant record and inform him of opportunity to file a pro se
brief, when there are no nonfrivolous issues), cert. denied, 506
U.S. 1055 (1993); Don v. Nix, 886 F.2d 203 (8th Cir. 1989)
7
(which issues to raise on appeal is counsel’s decision); Mayo v.
Lynaugh, 882 F.2d 134 (5th Cir. 1989) (reasonable for appellate
counsel to winnow out weaker arguments and focus on key
issues); cf. United States v. Ogbanna, 184 F.3d 447, 449 & n.2
(5th Cir.) (refusing to consider the defendant’s pro se brief, and
threatening to sanction counsel for aiding the defendant in filing
a frivolous pro se brief), cert. denied, 528 U.S. 1055 (1999);
United States v. Wagner, 158 F.3d 901 (5th Cir. 1998) (after
counsel files Anders brief, court will consider Anders brief and
defendant’s arguments, but defendant cannot proceed pro se);
United States v. Dierling, 131 F.3d 722, 734-35 n.7 (8th Cir.
1997) (stating that it is not the practice of the court to consider
pro se briefs filed by parties who are represented by counsel, and
implicitly rejecting the defendant’s request for copies of the
transcripts), cert. denied, 523 U.S. 1066 (1998).
7.
Nor does appellate counsel have a duty to file a petition for
rehearing. See United States v. Coney, 120 F.3d 26, 27 (3d Cir.
1997) (holding that criminal defense counsel is under no
obligation to file a petition for rehearing or a petition for
rehearing en banc); cf. United States v. Hawkins, 505 F.3d 613,
614-15 (7th Cir. 2007) (Ripple, J., in chambers) (acknowledging
that defense counsel generally has no obligation to file a petition
for rehearing, but noting that the court could not accept that
position at the present time given the claim raised on appeal and
the conclusory nature of appointed counsel’s submission).
8.
Appellate counsel also is not required to provide the defendant
with his own personal copies of the transcripts. Kimsey v. Gora,
772 F.2d 907, 1985 WL 13651, at *2 (6th Cir. Aug. 1, 1985)
(unpublished) (holding that a defendant represented by counsel on
appeal is not entitled to his own personal copies of the transcripts
in his case); United States v. Ward, 610 F.2d 294, 295 (5th Cir.
1980) (same); Hooks v. Roberts, 480 F.2d 1196, 1198 (5th Cir.
1973) (same), cert. denied, 414 U.S. 1163 (1974); Shelton v.
Beto, 460 F.2d 1234, 1235 (5th Cir. 1972) (appellate counsel was
the best judge of whether he needed a separate copy of the
8
transcript); Perry v. Texas, 456 F.2d 879 (5th Cir.) (defendant has
no right to copies of transcripts for his own personal use), cert.
denied, 409 U.S. 916 (1972); cf. Wells v. United States, 530 F.2d
971, 1975 U.S. App. LEXIS 11778, at *2-*3 (4th Cir. 1975)
(unpublished) (holding that there is no constitutional or statutory
requirement that appellate counsel confer with his client).
II.
Defense counsel cannot keep the fruits and instrumentalities of a crime.
A.
B.
“It is an abuse of a lawyer’s professional responsibility knowingly
to take possession of and secrete the fruits and instrumentalities of a
crime.” In re Ryder, 381 F.2d 713, 714 (4th Cir. 1967); see also United
States v. Cunningham, 672 F.2d 1064 (2d Cir. 1982) (disqualifying
defense attorney who had allegedly fabricated and destroyed evidence);
Glass v. Heyd, 457 F.2d 562, 566 (5th Cir. 1972) (adopting reasoning
of In re Ryder).
1.
Taking possession of the fruits and instrumentalities makes the
lawyer a participant in the criminal act. In re Ryder, 381 F.2d at
714.
2.
The lawyer’s acts are not protected by the attorney-client
privilege. Id.; see also Cal. Standing Comm. on Prof’l
Responsibility, Formal Op. No. 1986-89, 1986 WL 69069, at *1*2 (1986) (holding that, when client requests attorney to take
possession of stolen property, attorney’s taking possession of
such property would alter the state of its possession and location,
and attorney must deliver stolen property to authorities if he takes
possession of it and must inform the client that he will deliver the
stolen property to authorities – and may become a witness – if he
takes possession).
An attorney cannot refuse to comply with a grand jury subpoena
ordering him to turn over money received from clients suspected of a
bank robbery. In re January 1976 Grand Jury, 534 F.2d 719 (7th Cir.
1976).
9
C.
D.
A lawyer shall not assist or counsel client to engage in conduct that the
lawyer knows is criminal or fraudulent. AMRPC, Rule 1.2(d); TDRPC,
Rule 1.02(c). See, e.g., In re Mross, 657 N.W.2d 342 (Wis. 2003)
(approving ninety-day suspension from the practice of law of state
public defender who smuggled cigarettes to his incarcerated client).
1.
Lawyer is required to give honest opinion about such conduct, but
cannot participate. AMRPC, Rule 1.2, Comment; see also
TDRPC, Rule 1.02(c).
2.
If client’s conduct persists, withdrawal may be required.
AMRPC, Rule 1.2, Comment.; see also TDRPC, Rule 1.02,
Comment 8; id. Rule 1.15.
3.
Lawyer may reveal confidential information to the extent the
lawyer reasonably believes necessary to prevent the client from
committing a criminal act that the lawyer believes is likely to
result in imminent death or substantial bodily injury. AMRPC,
Rule 1.6 & Comment. Some jurisdictions, such as Texas, require
the lawyer to reveal confidential information clearly establishing
client is likely to commit a criminal or fraudulent act likely to
result in death or serious bodily harm to a person, to the extent it
reasonably appears necessary to prevent client from committing
the act, and even permit the lawyer to reveal confidential
information if substantial injury to financial interests or property
is likely. See, e.g., TDRPC, Rule l.05(e) & Comments 18 and 19.
If you end up with the fruits or instrumentalities of the crime,
immediately take remedial measures to produce them to the prosecution
while maintaining the attorney-client privilege and work product
doctrine with regard to other information that you might have gathered.
1.
See, e.g., United States v. Scruggs, 549 F.2d 1097, 1103-04 (6th
Cir.) (affirming obstruction and possession of stolen money
convictions of father and son attorneys who took bank robbery
money as a fee, denied doing so, and destroyed the money), cert.
denied, 434 U.S. 824 (1977);
10
2.
III.
Commonwealth v. Stenhach, 514 A.2d 114, 116-27 (Pa. Super.
Ct. 1986) (affirming public defenders’ convictions for hindering
prosecution and tampering with evidence by withholding rifle
stock until the middle of their client’s murder trial), appeal
denied, 534 A.2d 769 (Pa. 1987).
The attorney-client privilege does not protect conversations about on-going
illegal activity.
A.
When the client seeks and obtains his attorney’s advice in furtherance
of illegal activities, the crime-fraud exception to the attorney-client
privilege permits the introduction into evidence of those conversations.
See United States v. Aucoin, 964 F.2d 1492 (5th Cir.) (intercepted
conversations concerning on-going, illegal gambling activity held
admissible), cert. denied, 506 U.S. 1023 (1992); see also TDRPC, Rule
1.05(c)(8) & Comments 9-12; United States v. Doe, 429 F.3d 450, 45354 (3d Cir. 2005) (holding that the crime-fraud exception only applies
“when a client knowingly seeks legal counsel to further a continuing or
future crime” and does not apply when the client merely “proposes a
course of conduct which he is advised by counsel is illegal”).
B.
“Once the party seeking disclosure makes a prima facie case that the
attorney-client relationship was used to promote an intended criminal
activity, the confidences within the relationship are no longer shielded.”
United States v. Ballard, 779 F.2d 287, 292 (5th Cir.), cert. denied, 475
U.S. 1109 (1986); see also In re: Grand Jury Investigation, 445 F.3d
266, 274 (3d Cir.) (“Therefore, the privilege can be overridden if the
client used the lawyer’s services to further a continuing or future crime
or fraud.”), cert. denied, 127 S. Ct. 538 (2006).
C.
A party “invoking the crime-fraud exception must make a prima facie
showing that (1) the client was engaged in or planning a criminal or
fraudulent scheme when he sought the advice of counsel to further the
scheme, and (2) the documents containing the privileged materials bear
a close relationship to the client’s existing or future scheme to commit
a crime or fraud.” In re Grand Jury Proceedings # 5, 401 F.3d 247, 251
11
(4th Cir. 2005).
1.
“Prong one of this test is satisfied by a prima facie showing of
evidence that, if believed by a trier of fact, would establish the
elements of some violation that was ongoing or about to be
committed.” Id.
2.
“Prong two may be satisfied with a showing of a close
relationship between the attorney-client communications and the
possible criminal or fraudulent activity.” Id.; see also In re Green
Grand Jury Subpoena, 492 F.3d 976, 983 (8th Cir. 2007)
(rejecting the contention that the showing must be by clear and
convincing evidence); In re: Grand Jury Investigation, 445 F.3d
at 274 (holding that, in a criminal case, the government “must
make a prima facie showing that (1) the client was committing or
intending to commit a prima facie showing that a fraud or crime,
and (2) the attorney-client communications were in furtherance of
that alleged crime of fraud”); In re Grand Jury Subpoena, 419
F.3d 329, 336 (5th Cir. 2005) (noting that allegations in the
pleadings alone are insufficient to make out a prima facie case).
D.
Whether the lawyer is unaware of or an unwitting tool in a continuing
or planned wrongful act is irrelevant to the crime-fraud exception to the
attorney-client privilege. In re Grand Jury Proceedings # 5, 401 F.3d at
251; see Doe, 429 F.3d at 454 (stating that “the client’s intention
controls” and that the attorney-client “privilege may be denied even if
the lawyer is altogether innocent”) (internal quotations omitted); In re
Grand Jury Proceedings, 87 F.3d 377 (9th Cir. 1996) (focus is on
client’s state of mind, not attorney’s; attorney may have been unaware
of crime and taken no affirmative step to further it; crime need not be
successfully completed); United States v. Neal, 27 F.3d 1035 (5th Cir.
1994) (crime-fraud exception applied even though attorney refused to
participate in or assist with illegal scheme), cert. denied, 513 U.S. 1179
(1995); see also TDRPC, Rule 1.05(c)(8) & Comments 9-12.
E.
The district court may perform an in camera inspection of privileged
information if the government makes a prima facie showing that the
12
crime-fraud exception applies. See United States v. Zolin, 491 U.S. 554,
572 (1989) (district court may perform in camera review of attorneyclient material upon showing of factual basis for good faith belief that
attorney was assisting client in crime or fraud); United States v. de la
Jara, 973 F.2d 746 (9th Cir. 1992) (for court to perform in camera
review of privileged materials, government must first make prima facie
showing that crime-fraud exception applies, based on nonprivileged
evidence).
F.
The circuits appear to be divided over whether a district court holding
an in camera hearing must review allegedly privileged documents before
deciding whether the crime-fraud exception applies. See In re Grand
Jury Proceedings # 5, 401 F.3d at 253 & n.5 (holding that the district
court could review summaries of the privilege holder’s documents, but
noting that In re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 645 (8th
Cir. 2001), and In re Antitrust Grand Jury, 805 F.2d 155, 168 (6th Cir.
1986), require a district court to review allegedly privileged documents
in camera).
G.
However, a district court abuses its discretion when it is presented with
no evidence of the contents of allegedly privileged documents, but
nevertheless holds that the documents bear a close relationship to an
existing or future scheme to commit a crime or fraud. In re Grand Jury
Proceedings # 5, 401 F.3d at 255.
H.
Note that an innocent attorney may invoke the work product privilege
“even if a prima facie case of fraud or criminal activity has been made
as to the client.” In re Grand Jury Proceedings, 43 F.3d 966, 972 (5th
Cir. 1994).
I.
In fact, the Fourth Circuit, in a thorough analysis, has opined that the
work product privilege may be asserted by the client or the attorney and
that “those seeking to overcome the opinion work product privilege [as
opposed to the fact work product privilege] must make a prima facie
showing that the attorney in question was aware of or a knowing
participant in the criminal conduct. If the attorney was not aware of the
13
criminal conduct, a court must redact any portions of subpoenaed
materials.” In re Grand Jury Proceedings # 5, 401 F.3d at 252 (emphasis
added; internal quotation marks omitted); see also In re Green Grand
Jury Subpoena, 492 F.3d at 976, 980-82 (8th Cir. 2007) (discussing the
distinction between “ordinary work product” and “opinion work
product” and the greater protection afforded the latter).
IV.
J.
Even if the government makes a prima facie showing that the crimefraud exception applies, “the proper reach of the crime-fraud exception
when applicable does not extend to all communications made in the
course of the attorney-client relationship, but rather is limited to those
communications and documents in furtherance of the contemplated or
ongoing criminal or fraudulent conduct.” In re Grand Jury Subpoena,
419 F.3d at 343 (holding that the district court’s “application of the
crime-fraud exception was overly broad because it lacked the requisite
specificity to reach only communications and documents no longer
protected by the attorney-client and work product privileges”).
K.
See also supra text, Section II.C.
The attorney-client privilege protects conversations between an attorney and
prospective clients who are jointly interviewed.
A.
One of many jointly interviewed prospective clients cannot waive the
attorney-client privilege as to all participants. In re Auclair, 961 F.2d 65
(5th Cir. 1992).
B.
One of the jointly interviewed prospective clients is entitled to
protection of the privilege even when joint representation proves
impossible and other clients waive the privilege. Id.; see also In re
Sealed Case, 29 F.3d 715, 718-19 (D.C. Cir. 1994) (remanding for a
determination on the applicability of the “common interest privilege”);
see generally AMRPC, Rule 1.6 & Comment (on confidentiality);
TDRPC, Rule 1.05 (same).
C.
Note that a joint defense agreement between defendants represented by
their own attorneys may present unique ethical problems and
14
considerations different from those presented by joint representation by
a single attorney. See, e.g., United States v. Almeida, 341 F.3d 1318,
1326 (11th Cir. 2003) (holding that “when each party to a joint defense
agreement is represented by his own attorney, and when
communications by one co-defendant are made to the attorneys of other
co-defendants, such communications do not get the benefit of the
attorney-client privilege in the event that the co-defendant decides to
testify on behalf of the government in exchange for a reduced
sentence”); United States v. Stepney, 246 F. Supp. 2d 1069 (N.D. Cal.
2002) (discussing power of district court to inquire into and review joint
defense agreements for potential ethical problems).
V.
The attorney-client privilege does not bar testimony about the original
condition and location of evidence when the evidence has been removed or
altered.
A.
If the attorney leaves evidence in its original location, testimony is
barred by the attorney-client privilege; because removal of evidence by
attorney or his client suggests an attempt to frustrate prosecution and
creates an obligation to turn it over to the state, attorney-client privilege
does not bar testimony on the evidence. Cluthette v. Rushen, 770 F.2d
1469, 1472-73 (9th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
B.
The attorney-client privilege does not apply when legal representation
was obtained to promote continuing or intended criminal activity.
United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994), cert. denied,
513 U.S. 1179 (1995); United States v. Soudan, 812 F.2d 920, 927 (5th
Cir. 1986), cert. denied, 481 U.S. 1052 (1987); United States v.
Harrelson, 754 F.2d 1153, 1167 (5th Cir.), cert. denied, 474 U.S. 1034
(1985); United States v. Dyer, 722 F.2d 174, 177 (5th Cir. 1983); see
also supra text, Sections II & III.
15
VI.
Defense counsel should not advise the client what his defense “should be”
before asking the client to discuss his involvement in the offense.
A.
B.
The lawyer should seek to determine all relevant facts known to the
client.
1.
The lawyer should probe for all legally relevant information.
2.
Without seeking to influence the direction of the client’s
responses. ABA Standards, § 4-3.2(a), at 152.
“Defense counsel should not instruct the client or intimate to the client
in any way that the client should not be candid in revealing facts so as
to afford defense counsel free rein to take action which would be
precluded by counsel’s knowing such facts.” Id. § 4-3.2(b), at 152; see
also AMRPC, Rule 1.2(d) (a lawyer shall not assist or counsel a client
to engage in fraudulent conduct); TDRPC, Rule 3.04(b) (a lawyer shall
not assist a witness in testifying falsely).
VII. Neither a prosecutor nor defense counsel may discourage or obstruct
communications between a witness and opposing counsel.
A.
It is unprofessional conduct for a prosecutor or defense counsel to
advise or cause any person (other than defense counsel’s own client) to
be advised to decline to give the opposing party information which such
person has the right to give. See ABA Standards, § 3-3.1(d), at 47; id.
§ 4-4.3(d), at 185.
B.
A lawyer shall not obstruct another party’s access to evidence or request
a person other than a client to refrain from voluntarily giving relevant
information to the other party. See AMRPC, Rule 3.4(a), (f); TDRPC,
3.04(a), (b) & (e); see also United States v. Arrington, 867 F.2d 122 (2d
Cir. 1989) (mistrial required where there were allegations that defense
attorney had attempted to keep witnesses from testifying, because
rebutting allegations would require attorney to act as witness and
because situation created conflict of interest); United States v. Walton,
602 F.2d 1176, 1179-80 (4th Cir. 1979); United States v. Murray, 492
16
F.2d 178, 194 (9th Cir. 1973), cert. denied, 419 U.S. 942 (1974); United
States v. Matlock, 491 F.2d 504, 506 (6th Cir.), cert. denied, 419 U.S.
864 (1974).
C.
Prosecution can justify interference with defense counsel’s right to
interview potential witness only by showing the clearest and most
compelling considerations. Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir.
1981), cert. denied, 456 U.S. 980 (1982); see also United States v. VegaFigueroa, 234 F.3d 744, 752 (1st Cir. 2000) (citing Kines while refusing
to reverse, but stating that “[w]e take a dim view of government agents
gratuitously confronting a defense witness out of court before the
witness testifies”); Cacoperdo v. Demosthenes, 37 F.3d 504 (9th Cir.
1994) (even if prosecution improperly interferes with defense access to
witness, there is no due process violation unless defendant can show this
prevented him from eliciting favorable evidence), cert. denied, 514 U.S.
1026 (1995); United States v. Medina, 992 F.2d 573 (6th Cir. 1993) (it
was not improper to wait until after witness’s direct testimony to make
him available to defense for interview, in context of security concerns),
cert. denied, 510 U.S. 1109 (1994).
D.
When a government agent merely advises a witness of his right to
decline to speak with defense counsel and the witness voluntarily
declines to do so, the defendant’s right of access to witnesses is not
violated. United States v. Bittner, 728 F.2d 1038, 1041-42 (8th Cir.
1984); see also United States v. Davis, 154 F.3d 772, 785 (8th Cir.
1998) (no error where government merely advised the witnesses that
they did not have to answer questions), cert. denied, 119 S. Ct. 1090
(1999); United States v. Tejeda, 974 F.2d 210, 217 (1st Cir. 1992)
(witness cannot be compelled to submit to a pretrial interview).
E.
The trial court’s denial of a motion for permission to speak to a
government witness during trial does not necessarily require reversal.
See, e.g., United States v. Scott, 518 F.2d 261, 268 (6th Cir. 1975)
(declining to reverse where: (1) trial court indicated it would grant a
recess after direct testimony but the defendants never requested one; (2)
defendants showed no more than the mere inaccessibility of the witness
prior to trial; and (3) prosecutor related the substance of the witness's
17
testimony to defense counsel and promised to turn over Jencks material
at trial); see also United States v. Walton, 602 F.2d 1176, 1179-80 (4th
Cir. 4th Cir. 1979) (expressing concern that a government witness was
placed in protective custody and that defendant was not allowed access
to the witness, but declining to reverse on the ground that the error was
harmless since the record showed that defense counsel had reviewed a
report containing the substance of the witness’s testimony, was prepared
to cross-examine the witness, and did a thorough job in doing so).
VIII. Criminal defense counsel is not required to advise a prospective witness
concerning the possibility of self-incrimination and the witness’s need for an
attorney, but may not misrepresent himself to be an impartial party or burden
or harass a prospective witness.
A.
It is not necessary for the lawyer or the lawyer’s investigator, in
interviewing a prospective witness, to caution the prospective witness
about self-incrimination and the need for counsel. ABA Standards, §
4-4.3(c), at 185.
B.
However, whenever a prosecutor knows or has reason to believe that the
conduct of a witness to be interviewed may be the subject of a criminal
prosecution, it is proper for the prosecutor to advise the witness
concerning possible self-incrimination and the possible need for
counsel. ABA Standards, § 3-3.2(b), at 53; see AMRPC, Rule 3.8(c)
(prosecutor shall not seek to obtain from unrepresented accused a waiver
of rights); id., Rule 3.8(b) (requiring prosecutor to assure accused has
been advised of his right to counsel); TDRPC, Rule 3.09(b) & (c)
(prosecutor should refrain from custodial interrogation of accused unless
accused has been warned of right to counsel and given reasonable
opportunity to obtain counsel, and prosecutor should refrain from
obtaining from unrepresented accused a waiver of important rights);
United States v. Jackson, 935 F.2d 832 (7th Cir. 1991) (it is proper for
prosecutor to warn unrepresented defense witness about risk of selfincrimination, in manner calculated to lead to uncoerced decision by
witness); see also United States v. Johnson, 437 F.3d 665, 677 (7th Cir.
2006) (quoting Jackson).
18
C.
Note that the Model Rules and state rules impose upon all attorneys
dealing with unrepresented third parties the obligation to make clear that
they are not disinterested and the obligation not to “use means that have
no substantial purpose other than to embarrass, delay, or burden a third
person, or use methods of obtaining evidence that violate the legal rights
of such . . . person[s].” AMRPC, Rules 4.3 & 4.4; see also AMRPC,
Rule 4.1(a) (requiring that, in the course of representing a client, a
lawyer shall not “knowingly make a false statement of material fact to
a third party” and “shall not state or imply that the lawyer is
disinterested”); TDRPC, Rules 4.03 & 4.04 (a lawyer representing a
client shall not state or imply to a third party that he is disinterested and
shall not engage in behavior solely to embarrass, delay, or burden a third
person).
1.
Engaging in deceitful subterfuge while examining a witness thus
may lead to disciplinary action. See, e.g., Cincinnati Bar Ass’n
v. Statzer, 800 N.E.2d 1117 (Ohio 2003) (finding that lawyer had
made a statement on matters that were not supported by
admissible evidence while appearing before a tribunal and that
she had engaged in a subterfuge that was a deceitful tactic that
intimidated the witness during the deposition of her former legal
assistant by (1) conspicuously placing nine audiotapes that were
suggestively labeled (but in fact contained irrelevant information)
in front of the legal assistant, (2) implying that she had recorded
conversations with the legal assistant that could impeach and
personally embarrass her, and (3) cautioning the legal assistant to
answer truthfully or risk perjuring herself).
2.
However, note that, in some cases, courts have declined to find
that deceptive investigative tactics were improper. See, e.g.,
Office of Lawyer Regulation v. Hurley, Case No. 07 AP 478-D
(Wis. Sup. Ct. Feb. 5, 2008) (Referee’s Report and
Recommendation) (finding that criminal defense lawyer
representing client on child pornography and sexual assault of a
child charges who hired investigator who posed as a company
offering a free computer and tricked the alleged child victim into
swapping his current computer for a new computer to discover
19
whether boy had pornography and child pornography on his
computer and thus learned about sex other than through the
defendant was justified in doing so and may in fact have been
required by the Sixth Amendment to do so), available at
http://www.thedailypage.com/media/2008/02/06/WI%20OLR
%20Hurley%20report%20020508.pdf; Ryan J. Foley, State
Wants Lawyer Scolded for Ruse, Wis. St. J., at A1, 2007 WLNR
5564529 (Mar. 23, 2007) (describing inception of Wisconsin
disciplinary proceedings against attorney Hurley and giving
concise account of the facts); see generally New York County
Lawyers’ Association Comm. on Prof’l Ethics, Formal Op. 737
(2007) (discussing a number of authorities on, and federal and
state cases that have approved of or struggled with, an attorney’s
use of an investigator who engages in deceptive techniques for
investigative purposes and holding that “[n]on-governmental
attorneys may therefore in our view ethically supervise nonattorney investigators employing a limited amount of
dissemblance in some strictly limited circumstances,” as specified
i n
t h e
o p i n i o n ) ,
a v a i l a b l e
a t
http://www.nycla.org/siteFiles/Publications/Publications519_0.
pdf.
IX.
It is neither unethical nor frivolous for criminal defense counsel to put the
prosecution to its burden of proof.
A.
The Model Rules of Professional Conduct state that a “lawyer shall not
bring or defend a proceeding, or assert or controvert an issue therein,
unless there is a basis for doing so that is not frivolous, which includes
a good faith argument for an extension, modification or reversal of
existing law.” AMRPC, Rule 3.1 & Comment; see also TDRPC, Rule
3.01.
B.
The Model Rules, however, make the explicit exception that “[a] lawyer
for the defendant in a criminal proceeding, or for the respondent in a
proceeding that could result in incarceration, may nevertheless so defend
the proceeding as to require that every element of the case be
established.” AMRPC, Rule 3.1; see also TDRPC, Rule 3.01, Comment
20
3.
C.
Legal scholars have pointed out that this “exception for criminal
proceedings reflects the constitutional principle that the state must prove
every element of the crime charged and may not, by procedural rule or
otherwise, shift its burden to the defendant.” Robert P. Schuwerk &
John F. Sutton, Jr., A Guide to the Texas Disciplinary Rules of
Professional Conduct, 27A HOUS. L. REV. 1, 236 (1990).
D.
The American Bar Association has explained that defense counsel’s
zealous protection of the rights of the client comports with, rather than
contradicts, the administration of justice:
“Defense counsel, in protecting the rights of the defendant, may resist
the wishes of the judge on some matters, and though such resistance
should never lead to disrespectful behavior, defense counsel may appear
unyielding and uncooperative at times. In doing so, defense counsel is
not contradicting his or her duty to the administration of justice but is
fulfilling a necessary and important function within the adversary
system. The adversary system requires defense counsel’s presence and
zealous advocacy just as it requires the presence and zealous advocacy
of the prosecutor and the neutrality of the judge. Defense counsel
should not be viewed as impeding the administration of justice simply
because he or she challenges the prosecution, but as an indispensable
part of its fulfillment.” ABA Standards, § 4-1.2, Commentary, at 122.
E.
The right to counsel hinges on “‘[t]he very premise of our adversary
system of criminal justice . . . that partisan advocacy on both sides of a
case will best promote the ultimate objective that the guilty be convicted
and the innocent go free.’” United States v. Cronic, 466 U.S. 648, 655
(1984) (quoting Herring v. New York, 422 U.S. 853, 862 (1975)).
F.
Under the Texas rules of professional ethics, for example, criminal
defense counsel has no duty to correct the mistakes or mistaken
impressions of the court when neither defense counsel nor the client
have made any misrepresentations to the court. See TX Eth. Op. 504,
1995 WL 908214 (Tex. Prof. Eth. Comm. 1995) (concluding that, if
21
neither criminal defense counsel nor his client have made any false
statements to the court, criminal defense counsel may remain silent
when the prosecutor erroneously tells the court that the client has no
prior criminal convictions). But see In re Selig, 850 A.2d 477 (N.J.
2004) (holding that attorney failed to inform court of material fact and
violated the rules of ethics where he told prosecutor his presence was
not needed at guilty plea proceeding and merely said “you can do fines”
in response to court’s inquiry when client entered guilty plea to traffic
tickets when more serious charges were pending and when the guilty
plea resulted in a double jeopardy bar against further prosecution on the
more serious pending charges); Current Development 2005-2006, Is
New Jersey’s Heightened Duty of Candor Too Much of a Good Thing?,
19 Geo. J. Legal Ethics 951 (2006) (concluding that New Jersey’s
ethical rule on candor constitutes a direct attack on the adversary
system).
G.
X.
Note, however, that, if disclosure of confidential information to a
tribunal is necessary to avoid a criminal or fraudulent act, then the
lawyer must reveal such information. See TDRPC, Rule 1.05(f) &
3.03(a)(2); see also TX Eth. Op. 473, 1992 WL 792966 (Tex. Prof. Eth.
Comm. 1992) (holding that an attorney must disclose information
learned from the client showing that the client either does not now, or
did not at the time of appointment, qualify financially for previously
appointed criminal defense counsel); see generally AMRPC, Rule 3.3,
Comment (stating that there are circumstances where failure to make
disclosure is the equivalent of an affirmative misrepresentation).
There is no universal answer on whether criminal defense counsel must or
should disclose the whereabouts of the bail jumping client.
A.
“No universal answers currently exist as to whether an attorney should
disclose his or her fugitive client’s whereabouts. Case law and ethical
opinions appear to conflict.” Shelly K. Hillyer, The Attorney-Client
Privilege, Ethical Rules of Confidentiality, and Other Arguments
Bearing on Disclosure of Fugitive Client’s Whereabouts, 68 TEMP. L.
REV. 307, 356 (1995) ; see also Carolyn Crotty Guttilla, Note, Caught
Between a Rock and a Hard Place: When Can or Should an Attorney
22
Disclose a Client’s Confidence, 32 SUFFOLK U. L. REV. 707, 721-22
(1999).
B.
C.
Answering the issue of whether an attorney is required to disclose the
whereabouts of the bail jumping client is complicated by the fact that the
American Bar Association (“ABA”) has changed its position on the
issue over the years.
1.
In 1936, the ABA took the position that an attorney was required
to disclose the whereabouts of his fugitive client and could be
disciplined for failing to do so. See ABA Formal Op. 155 (1936).
2.
In 1980, the ABA took the position that an attorney did not have
a duty to report to authorities that his client remained free on
bond long after sentencing when the client and the attorney were
not under a court order concerning surrender and when the
attorney had advised the client to surrender to the proper
authority. ABA Formal Op. 1453 (1980).
3.
In 1984, however, the ABA withdrew Formal Opinion 155 (1936)
because it was “inconsistent with both the Model Rules of
Professional Conduct and the former Model Code of Professional
Responsibility.” ABA Formal Op. 84-349 (1984).
Some states followed the ABA’s chameleon-like position, and some
states did not do so.
1.
For example, the Florida State Bar at first unanimously followed
the position that an attorney was required to disclose that his
client had left the state with the intention of jumping bail, Florida
Ethics Op. 72-34 (1973), but it later withdrew that opinion for
reconsideration. See United States v. Del Carpio-Cotrina, 733 F.
Supp. 95, 98 n.8 (S.D. Fla. 1990).
2.
Ultimately, the Florida State Bar decided that a criminal defense
lawyer who learns that his client has left the state for the purpose
of avoiding a court appearance may not, under most
23
circumstances, divulge such information until required to do so
by the court at the time of the scheduled appearance. Florida
Ethics Op. 90-1 (1990), amended (1996). The opinion notes that
counsel would be ethically obliged to step forward and advise the
court of the situation when, prior to the date of the court
appearance, counsel knows to a reasonable certainty that the
client’s avoidance of the court’s authority is a willful and an
irreversible fact or when the client has violated some other
specific condition of bond such as a condition that he not leave
the state. Id.
3.
The New York State Bar, however, has opined that information
respecting a client’s whereabouts gained in the professional
relationship that the client has requested be held inviolate
squarely falls within the general ethical obligation of preserving
the confidentiality of client secrets and that a lawyer may
postpone testifying to such information pending further review.
New York Ethics Op. 528 (1981); see also New York City Bar
Ass’n Comm. on Professional and Judicial Ethics, Formal O. No.
99-02 (1999) (concluding that attorney may sell property of
fugitive client and pay client’s creditors as long as the attorney
does not know that the sale of the property or the disposition of
the proceeds is unlawful).
4.
Other states take a position similar to the position of the New
York State Bar. See, e.g., Utah State Bar Ethics Advisory Op.
Comm., Op. No. 97-02 (1997) (concluding that an attorney may
not reveal the phone number of a fugitive client to authorities who
have an arrest warrant for the client and that refusing to do so
does not constitute assisting the client in conduct that is illegal or
fraudulent); Illinois State Bar Advisory Op. 89-13 (1990) (stating
that an attorney at a docket call who has a client who has
disappeared or has cut off all contact cannot disclose such
information if it is a secret or in confidence unless ordered to do
so, in which event the attorney may disclose such information, or
appeal the order, or test the law, or seek permission to withdraw
from representation); Nebraska State Bar Advisory Op. 90-2
24
(stating that an attorney may not reveal the whereabouts of a
former client to the United States Marshal where such
information was received during the course of the professional
relationship, but also stating that the attorney may ethically do so
when the attorney determines that the client intends to commit a
crime in the future, when the client has consented, or when the
attorney is required to do so by law or court order).2
D.
Courts addressing the issue of whether an attorney must disclose the bail
jumping client’s whereabouts similarly are divided on the issue.
1.
Some courts have held that the lawyer has a duty to disclose the
whereabouts of the bail jumping client. In United States v. Del
Carpio-Cotrina, 733 F. Supp. 95 (S.D. Fla. 1990), for example,
the district court held that a lawyer has a duty to advise the court
that the client has jumped bond and will not appear for trial when
the lawyer has a firm factual basis (equating to proof beyond a
reasonable doubt and actual knowledge) for believing such to be
true. Id. at 99-100. The court did not sanction counsel for failing
to inform the court and moving for a continuance because the
court determined that the law on this issue had been unclear up to
that point in time. Id. at 100.
2.
See also Commonwealth v. Maguigan, 511 A.2d 1327, 1337 (Pa.
Sup. Ct. 1986) (holding that, when a client is under conditions of
bail and defies a lawful court order to appear, “his ‘whereabouts’
are not unqualifiedly protected by the attorney-client privilege,
and the attorney may be compelled to disclose information of the
2
Note that the Texas Disciplinary Rules of Professional Conduct state that a “lawyer may
reveal confidential information . . . [w]hen the lawyer has reason to believe it is necessary to do so
to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. . . [or]
[w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from
committing a criminal or fraudulent act.” TDRPC, Rule 1.05(c)(4) & (7). Nebraska State Bar Op.
90-2 cites State Bar of Texas Informal Opinion 101 (1979) for the proposition that an attorney must
comply with a court order to disclose information even when the attorney has been instructed to
invoke the attorney-client privilege, but the author of this paper has not been able to confirm the
existence of that Texas informal opinion.
25
client’s whereabouts”); In re Doe, 420 N.Y.S.2d 996, 998-99
(N.Y. Sup. Ct. 1979) (holding that attorney must disclose the
whereabouts of the client who breached her plea agreement by
leaving state psychiatric hospital, but relying on the later
withdrawn ABA Formal Opinion 155 (1936)).
3.
Other courts have held that the client’s whereabouts are protected
by the attorney-client privilege. In In re Nackson, 555 A.2d 1101
(N.J. Sup. Ct. 1989), for example, the New Jersey Supreme Court
held that the bail jumping client’s whereabouts were privileged
and not covered by the crime-fraud exception when the client had
phoned the attorney from out of state in order to have him
negotiate a plea agreement before he would return to New Jersey
and when the authorities had used no other means to find the
client than subpoenaing his lawyer to testify before the grand
jury. Id. at 1103-07.
4.
See also In re Grand Jury Subpoenas Served Upon Field, 408 F.
Supp. 1169 (S.D.N.Y. 1976) (holding that, when grand jury
subpoenas were served on the client’s lawyers and the client had
consulted with his lawyers concerning which jurisdiction he
should relocate to from Milan, Italy, the client’s address was
privileged because it was communicated to the lawyers for the
purpose of receiving legal advice); In re Stolar, 397 F. Supp. 520
(S.D.N.Y. 1975) (holding that client’s address and telephone
number were protected by the attorney-client privilege when the
client had disclosed this information to get legal advice
concerning the FBI’s desire to question him and when the grand
jury and the FBI sought the information to question the client
about the whereabouts of a third person suspected of having
violated federal law).
26
XI.
Criminal defense counsel may attempt to impeach or discredit a witness by
cross-examination even when counsel knows that the witness is telling the
truth.
A.
A lawyer’s belief or knowledge that the witness is telling the truth does
not preclude cross-examination. ABA Standards, § 4-7.6(b), at 223.
B.
The rule above substantially applies to a prosecutor, but a “prosecutor
should not use the power of cross-examination to discredit or undermine
a witness if the prosecutor knows the witness is testifying truthfully.”
ABA Standards, § 3-5.7(b), at 103; see also AMRPC, Rule 3.8,
Comment (prosecutor has responsibility of a minister of justice and not
simply that of an advocate).
C.
“If [defense counsel] can confuse a witness, even a truthful one, or make
him appear at a disadvantage, unsure, or indecisive, that will be his
normal course. Our interest in not convicting the innocent permits
counsel to put the State to its proof, to put the State’s case in the worst
possible light, regardless of what he thinks or knows to be the truth.”
United States v. Wade, 388 U.S. 218, 257-58 (1967) (White, J.,
dissenting in part and concurring in part).
D.
“Vigorous advocacy by defense counsel may properly entail impeaching
or confusing a witness, even if counsel thinks the witness is truthful, and
refraining from presenting evidence even if he knows the truth.” United
States v. Thoreen, 653 F.2d 1332, 1338-39 (9th Cir. 1981), cert. denied,
455 U.S. 938 (1982). Nevertheless, an attorney was held in criminal
contempt for obtaining an acquittal by having a person other than his
client sit at the defense table and having a key government witness
identify that person as the offender. Id. at 1340-43. According to the
Ninth Circuit, defense counsel first should have notified the opposing
party and the court of the substitution of the person at the defense table.
Id.
27
XII. An attorney should not call a witness to testify if the attorney knows that the
witness will claim a valid privilege not to testify.
A.
Neither the prosecutor nor defense counsel should call such a witness to
testify for the purpose of impressing upon the jury the fact of the claim
of the privilege, and in some instances, doing so will constitute
unprofessional conduct. ABA Standards, § 3-5.7(c), at 103; id. §
4-7.6(c) at 223; cf. AMRPC, Rule 4.4 (lawyer shall not use means that
have no substantial purpose other than to embarrass, delay, or burden a
third person and should not use methods of obtaining evidence that
violate the legal rights of such a person); TDRPC, Rule 4.04(a) (same);
see also United States v. Ornelas-Rodriguez, 12 F.3d 1339 (5th Cir.)
(stating that a witness’s invocation of the Fifth Amendment may require
a mistrial if (1) the government is flagrantly trying to build its case on
inferences from the use of the privilege or (2) the witness’s refusal to
answer lends considerable weight to the government’s case), cert.
denied, 513 U.S. 830 (1994); United States v. Crawford, 707 F.2d 447
(10th Cir. 1983) (neither government nor defense may call witness
knowing the witness will claim the Fifth Amendment privilege); United
States v. Bowman, 636 F.2d 1003 (5th Cir. Unit A 1981) (upholding
district court’s refusal to allow defense to call witnesses who would take
the Fifth Amendment, giving rise to questionable inferences).
B.
The trial court should carefully scrutinize the practice of calling a
witness who will claim the privilege not to testify because of the
potential for unfair prejudice. United States v. Maffei, 450 F.2d 928
(6th Cir. 1971), cert. denied. 406 U.S. 938 (1972); see also United States
v. Vandetti, 623 F.2d 1144 (6th Cir. 1980) (suggesting use of balancing
under Fed. R. Evid. 403); United States v. Kilpatrick, 477 F.2d 357 (6th
Cir. 1973) (permitting prosecutor to call such a witness when
government’s case otherwise would be seriously prejudiced).
C.
To warrant reversal of a conviction, the prosecutor must have made a
conscious and flagrant effort to construct his case on the inferences
arising from the assertion of the privilege. See United States v. Brown,
12 F.3d 52, 54 (5th Cir. 1994) (vacating convictions and sentences); but
see United States v. Victor, 973 F.2d 975, 979-80 (1st Cir. 1992)
28
(refusing to reverse due to lack of prejudice); United States v. Newton,
891 F.2d 944 (1st Cir. 1989) (prosecutor did not make conscious and
flagrant effort and testimony did not add critical weight to prosecutor’s
case); see also Namet v. United States, 373 U.S. 179 (1963) (no
reversible error where witness made only a few claims of privilege to
support inference already well established by other evidence).
XIII. Defense counsel must not assist his client in testifying falsely when his client
informs him that he intends to commit perjury.
A.
A defendant’s constitutional right to testify does not extend to the right
to testify falsely. Nix v. Whiteside, 475 U.S. 157, 173 (1986); see also
United States v. Dunnigan, 507 U.S. 87 (1993) (sentence enhancement
for obstruction of justice for defendant’s perjury at trial did not violate
defendant’s right to testify).
B.
Whether a lawyer persuades or compels the client to desist from perjury,
the client does not have a valid claim of ineffective assistance of
counsel. Nix, 457 U.S. at 175; see also Jackson v. United States, 928
F.2d 245 (8th Cir.) (it was not ineffective assistance for attorney to tell
court, outside presence of jury, that defendant wanted to testify and that
attorney might have to withdraw as a result; defendant’s decision not to
testify after court explained attorney’s duties regarding perjury was
voluntary), cert. denied, 502 U.S. 828 (1991).
C.
The lawyer should not inform the court in the presence of the jury that
the defendant is testifying against advice of counsel, but doing so is not
necessarily reversible error. United States v. Campbell, 616 F.2d 1151,
1152 (9th Cir.), cert. denied, 447 U.S. 910 (1980).
D.
Courts have disagreed on whether informing the court during a bench
trial or hearing that the client is testifying against the advice of counsel
and will testify in narrative form, which leads the court to infer that the
client will perjure himself, is ineffective assistance of counsel or the
denial of the right to a fair trial. Compare Lowrey v. Cardwell, 575 F.2d
727, 730-31 (9th Cir. 1978) (holding that defense counsel at defendant’s
bench trial violated the defendant’s right to a fair trial when counsel,
29
who was surprised by the client’s perjury, obtained a recess,
unsuccessfully moved to withdraw, ended the defendant’s testimony,
and then did not refer to the defendant’s testimony in closing argument,
because counsel’s actions gave the trial court the impression that the
defendant had testified falsely), with People v. Andrades, 828 N.E.2d
599, 603-04 & n.3 (N.Y. 2005) (expressly rejecting the Ninth Circuit’s
approach in Lowery, and holding that defendant was not denied his right
to a fair hearing and that counsel was not ineffective, and properly
balanced his duties to the client and to the court, when counsel
unsuccessfully moved to withdraw prior to defendant’s suppression
hearing and at the suppression hearing told the court that the defendant
intended to testify, that he had advised the defendant not to testify, that
he was having an ethical problem, and that he intended to just call the
defendant’s attention to the time, date, and location, “and let him run
with the ball”).
E.
At least one court has held that counsel’s refusal to put his perjurious
client on the witness stand did not violate his client's constitutional
rights. United States v. Curtis, 742 F.2d 1070 (7th Cir. 1984), cert.
denied, 475 U.S. 1064 (1986).
F.
The Tenth Circuit has held that defense counsel’s mid-trial, ex parte
discussion with the judge concerning defense counsel’s fear that his
client would commit perjury did not violate counsel’s ethical duty to the
client or constitute ineffective assistance of counsel. United States v.
Litchfield, 959 F.2d 1514 (10th Cir. 1992).
G.
Counsel should strongly discourage the defendant from taking the
witness stand to testify perjuriously and must not assist the client in
committing perjury. See ABA Standards, § 4-7.5, at 221 (Commentary)
& n.1 (noting lack of consensus on what defense counsel should do);
AMRPC, Rule 1.2(d) & Comment; Id., Rule 3.3, Comment (noting also
that the annotation under Rule 3.3 contains a detailed discussion of this
issue); TDRPC, Rule 3.03(a)(5) & Comment 5 (a lawyer must not use
evidence he knows to be false and should urge the client not to testify
falsely).
30
H.
If persuasion does not work, counsel may seek to withdraw if necessary,
but should not inform the court of the reasons for doing so. See ABA
Standards, § 4-7.5 (Commentary); see also AMRPC, Rule 1.2,
Comment; id., Rule 1.6, Comment; TDRPC, Rule 3.03, Comments 5&6;
see also United States v. Henkel, 799 F.2d 369, 370 (7th Cir. 1986), cert.
denied 479 U.S. 1101 (1987) (holding that the perjurious defendant was
not denied due process or his right to counsel when the lawyer called the
defendant as a witness to testify, informed the court that the defendant
was testifying against advice of counsel, and moved to withdraw
because he could not professionally proceed, and when the court denied
the motion to withdraw and offered the defendant an opportunity to
testify, but the defendant declined the court’s offer).
I.
The ABA Standards and the Model Rules appear to approve, as a last
resort, disclosing the perjury to the court. See ABA Standards, § 4-7.5
(Commentary) (if withdrawal is impossible or will not remedy the
situation, the advocate should make disclosure to the court); AMRPC,
Rule 3.3 (Comment) (same).
J.
Some states require that, when the client commits perjury, the lawyer
must take reasonable remedial measures which may include revealing
the client’s perjury. See, e.g., TDRPC, Rule 3.03, Comment 12; see also
id., Rule 3.03(b) (if the lawyer cannot persuade the client to correct false
evidence, the lawyer shall take reasonable remedial measures which may
include disclosure of the true facts).
K.
Both the Model Rules of Professional Conduct and the rules of various
jurisdictions recognize the lawyer’s authority to refuse to offer
testimony or other evidence that the lawyer believes is false. See
AMRPC, Rule 3.3, Comment; see, e.g., TDRPC, Rule 3.03, Comment
15. As pointed out by the Texas Disciplinary Rules, for example, there
is a distinction between the situation in which the lawyer knows that the
client’s testimony is false and the situation in which the lawyer believes
the client’s testimony is false. In the latter situation, the choice to use
or not to use the testimony is within the lawyer’s discretion. “A lawyer
may refuse to offer evidence that the lawyer reasonably believes is
untrustworthy. That discretion should be exercised cautiously, however,
31
in order not to impair the legitimate interests of the client. Where a
client wishes to have such suspect evidence introduced, generally the
lawyer should do so and allow the finder of fact to assess its probative
value.” TDRPC, Rule 3.03, Comment. 15. A lawyer’s duties under the
Texas Rules to remedy the prior use of false evidence “are not triggered
by the introduction of testimony or other evidence that is believed by the
lawyer to be false, but not known to be so.” Id.
L.
There is no universally agreed upon proper course found in the literature
concerning the steps that defense counsel should take when the
defendant insists on committing perjury. See United States v. Scott,
909 F.2d 488, 494 n.10 (11th Cir. 1990) (discussing various views of
scholars); see also TDRPC, Rule 3.03, Comments 11& 12 (discussing
three proposed solutions to dilemma of client’s perjury).
M.
A number of cases seem to approve defense counsel’s disclosure to the
court of the fact that the client is about to commit perjury. See United
States v. Omene, 143 F.3d 1167, 1170-72 (9th Cir. 1998) (holding that
defendant was not denied effective assistance of counsel when he was
put to the choice of not testifying at all or testifying only in narrative
form after his trial counsel informed the court that he had an
“overwhelming belief” that his client would give perjurious testimony,
but could say nothing else); United States v. Hamilton, 128 F.3d 996,
1000 (6th Cir. 1997) (holding that former defense counsel did not
violate the attorney-client privilege by filing a sealed pleading with the
court indicating that certain receipts were false and that the client would
commit perjury if he testified at trial); see also Shockley v. Kearney,
Civ. A. No. 95-207-SLR, 1996 WL 431093 (D. Del. July 25, 1996)
(holding that defense counsel did not render ineffective assistance when
he had a mid-trial in-chambers conference with the court in which he
revealed that the defendant would “testify to a version of events which
I know not to be true” and when the court allowed the defendant to
testify in narrative form).
N.
“Not unexpectedly, courts have adopted differing standards to determine
what an attorney must ‘know’ before concluding that his client’s
testimony will be perjurious.” Commonwealth v. Mitchell, 781 N.E.2d
32
1237, 1246, 1250-51 (Mass.) (discussing the “good cause,” “compelling
support,” “knowledge beyond a reasonable doubt,” and “actual
knowledge” or “firm factual basis” standards adopted by various courts
and adopting the “firm basis in objective fact” standard), cert. denied,
539 U.S. 907 (2003); see also Brown v. Commonwealth, 226 S.W.3d 74,
81-85 (Ky. 2007) (adopting the approach of Mitchell).
O.
Based on the “extremely high standard for evaluating prospective
perjury,” the Wisconsin Supreme Court has made it clear that “an
attorney may not substitute narrative questioning for the traditional
question and answer format unless counsel knows that the client intends
to testify falsely. Absent the most extraordinary circumstances, such
knowledge must be based on the client’s expressed admission of intent
to testify untruthfully. While we recognize that the defendant’s
admission need not be phrased in ‘magic words,’ it must be
unambiguous and directly made to the attorney.” State v. McDowell,
681 N.W.2d 500, 514 (Wis. 2004) (holding that defense counsel was
ineffective by switching to narrative questioning during trial despite the
fact that he believed his client intended to testify truthfully, but finding
that the client had not established prejudice); see also People v. Darrett,
769 N.Y.S.2d 14, 18-22 (N.Y. App. Div. 2003) (remanding for a new
suppression hearing on the ground that defense counsel prematurely
revealed, during a suppression hearing, that the client would falsely
claim either self defense or alibi). But see People v. Calhoun, 351 Ill.
App. 3d 1072, 1084-85 (Ill. App. Ct. 2004) (criticizing McDowell on the
ground that the actual-knowledge standard “is too high,” and approving
the firm-factual-basis standard of Mitchell).
33
XIV. Defense counsel should not comment to the jury on the possible inference of
guilt from a codefendant’s refusal to testify.
A.
The defendant has a constitutional right to silence, free from prejudicial
comments. United States v. Kane, 887 F.2d 568, 575 (5th Cir. 1989),
cert. denied, 493 U.S. 1090 (1990); see also United States v. DeLuna,
308 F.2d 140, 141 (5th Cir. 1962) (reversing defendant’s conviction).
B.
If counsel for codefendant comments on another defendant’s decision
to invoke his right to silence and such comments are not harmless,
reversal is merited. United States v. Jones, 839 F.2d 1041, 1055 (5th
Cir.), cert. denied, 486 U.S. 1024 (1988); see also United States v.
Coleman, 7 F.3d 1500 (10th Cir. 1993); Kane, 887 F.2d at 575.
C.
The test for analyzing whether counsel’s comments constituted
prejudicial error is:
D.
1.
Were the comments constitutionally impermissible as a violation
of the integrity of the defendant’s right to remain silent?
2.
Were the comments harmless beyond a reasonable doubt? Kane,
887 F.2d at 575; see also United States v. Collins, 972 F.2d 1385,
1408 n.47 (5th Cir. 1992).
A lawyer’s adverse comment on the codefendant’s silence is improper,
but a lawyer’s favorable comment on his own client's willingness to
testify is permissible. United States v. LaChance, 817 F.2d 1491, 149596 (11th Cir.), cert. denied, 484 U.S. 928 (1987); United States v.
Diecidue, 603 F.2d 535, 553 (5th Cir. 1979).
34
XV. Defense counsel normally should not represent two defendants charged in the
same indictment or even in two separate indictments if some facts are common
to each case.
A.
Defense counsel should not undertake to defend more that one defendant
in a criminal case if the duty to one of the defendants may conflict with
the other. ABA Standards, § 4-3.5(c).
B.
The potential for conflict of interest in representing multiple defendants
is so grave that ordinarily defense counsel should decline to act for more
than one of several codefendants, except in unusual situations when it
is clear that no conflict will develop at any stage of the proceedings. Id.;
see also AMRPC, Rule 1.7, Comment (noting that ordinarily, in a
criminal case, a lawyer should represent only one client because the
potential for a conflict is “so grave”); TDRPC, Rule 1.06, Comment 2
(same); see generally United States v. Infante, 404 F.3d 376, 389-393
(5th Cir. 2005) (holding that lower court erred in finding that there was
no conflict of interest where trial counsel who represented the defendant
also represented two of the witnesses who testified against the defendant
and stated to the trial court that he would advocate for a reduction in the
sentences of the witnesses based on their testimony; remanding for
determination of whether the conflict adversely affected trial counsel’s
performance); McFarland v. Yukins, 356 F.3d 688 (6th Cir. 2004)
(affirming grant of writ of habeas corpus because trial counsel labored
under a conflict of interest when he jointly represented the defendant
and her daughter in a drug prosecution and made an actual choice to
forego an obvious and strong defense to avoid inculpating the daughter);
Dawan v. Lockhart, 31 F.3d 718 (8th Cir. 1994) (granting habeas where
defendant’s attorney previously had represented codefendant who
implicated defendant); Cates v. Superintendent, Indiana Youth Center,
981 F.2d 949 (7th Cir. 1992) (although joint representation of
codefendants does not per se violate Sixth Amendment, counsel must
advise court of conflict); United States v. Moscony, 927 F.2d 742 (3d
Cir.) (attorney disqualified where attorney had interviewed client’s
employees, who were under investigation but became witnesses for
government, and employees at time of interview believed the attorney
was representing them), cert. denied, 501 U.S. 1211 (1991). But see
35
United States v. Kindle, 925 F.2d 272 (8th Cir. 1991) (attorney’s
participation in uniform defense strategy with codefendants’ attorneys
does not amount to constructive joint representation or conflict of
interest).
C.
The duty not to reveal information relating to representation of a client
continues after the lawyer-client relationship has terminated:
1.
Defense counsel, therefore, must not put himself or herself into a
position where that confidentiality is threatened, ABA Standards,
§ 4-3.5(c) (Commentary); see also AMRPC 1.9 (discussing
prohibition against representation that conflicts with the interests
of a former client); TDRPC, Rule 1.09 (same).
2.
Nor may defense counsel allow confidential information to be
used or revealed to the disadvantage of the former client. ABA
Standards, § 4-3.5(c) (Commentary); AMRPC 1.9(c)(1) & (2);
TDRPC, Rule 1.05(b)(3); see also Thomas v. Municipal Court,
878 F.2d 285 (9th Cir. 1989) (attorney could not represent
husband in prosecution for assaulting wife, where attorney had
formerly represented wife in action to set aside her first marriage,
and husband’s defense was that wife falsely accused him of
assault in retaliation for his allegation that she was a bigamist); cf.
Mickens v. Taylor, 535 U.S. 162 (2002) (holding that, to
demonstrate a Sixth Amendment violation where the trial court
failed to inquire into the potential conflict of interest arising from
defense counsel’s prior representation of the murder victim at the
time of death and where the trial court knew of or reasonably
should have known of the potential conflict, the defendant had to
establish that this conflict of interest adversely affected counsel’s
performance); United States v. Regale, No. Crim. 01-321-KI,
2006 WL 696312, at * (D. Or. Mar. 14, 2006) (unpublished)
(holding that criminal defense attorney whose client had died
could not continue to serve as a resource counsel for the other
defendants’ attorneys with whom there was a joint defense
agreement in the case due to the continued duty of defense
counsel to his deceased client and the conflicts of interest that
36
could be created by it); see generally Swidler & Berlin v. United
States, 524 U.S. 399, 405-06 (1998) (discussing that the attorneyclient privilege continues after the death of the client).
D.
If a lawyer would be prohibited due to a conflict of interest from
engaging in particular conduct, no other lawyer while a member of or
associated with that lawyer’s firm may engage in that conduct.
AMRPC, Rule 1.10; TDRPC, Rule 1.06(f); see In re Prince, 40 F.3d 356
(11th Cir. 1994) (rule applies to firms of any size).
E.
Although two defendants may consent to joint representation in a
criminal case, the trial court may refuse to allow it. Wheat v. United
States, 486 U.S. 153 (1988) (trial court may refuse to allow multiple
representation when actual conflict or serious potential for conflict
exists); see United States v. Vasquez, 995 F.2d 40 (5th Cir. 1993)
(despite defendant’s waiver of conflict, disqualification of counsel who
represented a government witness was proper); United States v. Holley,
826 F.2d 331, 333 (5th Cir. 1987) (trial court’s failure to comply with
Fed. R. Crim. P. 44(c) requires reversal only if an actual conflict is
demonstrated), cert. denied, 485 U.S. 960 (1988); United States v.
Benavides, 664 F.2d 1255 (5th Cir.), cert. denied, 457 U.S. 1121 (1982)
(same); see also Fed. R. Crim. P. 44(c); see generally United States v.
Rico, 51 F.3d 495 (5th Cir.) (upholding waiver of conflict by wife who
accepted joint representation with husband, but who later asserted this
had prevented her from presenting duress defense), cert. denied, 516
U.S. 883 (1995); United States v. Reeves, 892 F.2d 1223 (5th Cir. 1990)
(it was not a violation of Sixth Amendment for court to remove, over
defendant’s objection, counsel who was under investigation in
connection with defendant’s offense).
37
XVI. The attorney-client privilege does not prohibit defense counsel from revealing
conversations with the client when the client accuses the attorney of
wrongdoing.
A.
The attorney-client privilege is waived by the client when the client
alleges a breach of a duty to him. See Bittaker v. Woodford, 331 F.3d
715, 716, 718 (9th Cir.), cert. denied, 540 U.S. 1013 (2003); Johnson v.
Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001), cert. denied, 535 U.S.
926 (2002); Laughner v. United States, 373 F.2d 326, 327 (5th Cir.
1967); see also Indus. Clearinghouse, Inc. v. Browning Mfg. Div. of
Emerson Elec. Co., 953 F.2d 1004, 1007 (5th Cir. 1992) (noting that
attack on attorney waives attorney-client privilege); Doe v. A. Corp.,
709 F.2d 1043, 1048-49 (5th Cir. 1983) (noting that it would be an
injustice to allow client’s confidence to deprive counsel of the means of
defending his own rights); Tasby v. United States, 504 F.2d 332, 336
(8th Cir. 1974), cert. denied, 419 U.S. 1125 (1975); see generally
AMRPC, Rule 1.6(b)(2) (lawyer may reveal confidential information to
the extent reasonably necessary to establish a claim or defense in a
controversy with the client or to respond to allegations in any
proceeding concerning the lawyer’s representation of the client);
TDRPC, Rule 1.05(c)(5)-(6) & (d)(2) (same).
B.
When the client calls into question the competence of his attorney, the
privilege is waived. Tasby, 504 F.2d at 336; see also Johnson, 256 F.3d
at 1178; Laughner, 373 F.2d at 327.
C.
The scope of the waiver applies to all communications relevant to the
issue of competence or breach of the duty. See Bittaker, 331 F.3d at
716; Laughner, 373 F.2d at 327; see also Indus. Clearinghouse, Inc., 953
F.2d at 1007 (discussing scope of waiver); cf. Naglak v. Pennsylvania
State University, 133 F.R.D. 18, 23 (M.D. Pa. 1990) (waiver is limited,
and blanket disclosure is not permitted); United States v. Zolp, 659 F.
Supp. 692, 723-24 (D.N.J. 1987) (even a witness for the government
waives the attorney-client privilege only to the extent that he discusses
such confidential communications with the government); see generally
Bittaker 331 F.3d at 718-729 (applying the implied waiver doctrine to
restrict the scope of a habeas petitioner’s waiver of the attorney-client
38
privilege and affirming the federal district court’s protective order,
which precluded the state from using the habeas petitioner’s privileged
materials that were produced during the federal habeas proceeding for
any other purpose than litigating the federal habeas petition and barred
the Attorney General from turning them over to any other law
enforcement or prosecutorial agencies).
D.
A lawyer may reveal such information to the extent the lawyer
reasonably believes necessary to respond to allegations concerning the
lawyer’s competency. AMRPC, Rule 1.6(b)(3); TDRPC, Rule
1.05(c)(5) & (6), (d)(2); see also Bittaker, 331 F.3d at 718-29.
E.
The lawyer must make every effort practicable to avoid unnecessary
disclosure of information relating to the representation of the client, to
limit the disclosure to those having a need to know it, and to obtain
protective orders or make other arrangements to minimize the risk of
disclosure. AMRPC, Rule 1.6(b)(3) Comment.; Mo. RPC, Rule 4-1.6,
Comment (disclosure should be no greater than the lawyer reasonably
believes necessary to vindicate innocence and should be made in a
manner that limits access to information by others, such as by use of
protective orders or other arrangements); see also TDRPC, 1.05,
Comment 14 (disclosure should be no greater than the lawyer believes
necessary to the purpose).
F.
In camera review of the proposed disclosure may be an appropriate
method for resolving whether the disclosure should be made. See Zola,
659 F. Supp. at 724-25; First Federal Savings and Loan v. Oppenheim,
Appel, Dixon & Co., 110 F.R.D. 557, 568 (S.D.N.Y. 1986).
G.
Defense counsel should not attempt to argue his own ineffectiveness,
however, but instead should seek appointment of new counsel. See
United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996) (when
defendant filed Rule 33 motion for new trial alleging ineffective
assistance of counsel, district court erred by refusing to appoint new
counsel; having trial counsel argue own ineffectiveness created conflict
and was presumed prejudicial).
39
XVII.
Counsel appointed under the Criminal Justice Act, 18 U.S.C. § 3006A,
must not request or accept payment from anyone other than the court.
A.
The Criminal Justice Act states that, except as authorized by the court,
no person appointed as counsel by the court “may request or accept any
payment or promise of payment for representing a defendant.” 18
U.S.C. § 3006(f).
B.
The Seventh Circuit has cogently summarized the purpose of this
provision:
The plain meaning of this sentence is that attorneys or
other persons “representing” a defendant under the CJA are
prohibited from seeking payment for their services from
sources other than the government without approval of the
district court. This provision prevents the augmentation of
their CJA remuneration in any way, including the
formation of side agreements with the defendant or with
others. . . .
. . . This requirement ensures the protection of the
government from the unnecessary expenditure of funds
when other sources are available to the defendant. It also
protects that defendant from demands to augment the
compensation of those who have agreed to render services
within the framework of the CJA. Even when, as here, the
side agreement is between third parties, the possibility of
eventual pressure on the defendant or on other on his
behalf to reimburse that attorney for the expenditure is a
substantial danger that Congress obviously intended to
curb. United States v. Silva, 140 F.3d 1098, 1102-03 (7th
Cir. 1998).
C.
If a third party can pay an acceptable fee, counsel should inform the
court that he or she is being retained to represent the client and should
move the court to vacate the appointment order.
D.
Note that, if counsel is appointed to represent a client in a large and
40
complex federal criminal case, appointed counsel can apply to the
district court for authorization to receive interim compensation while the
case is pending. See, e.g., United States v. Gonzales, 150 F.3d 1246,
1251-52 (1998) (citing pertinent rules and noting that the district court
had approved interim compensation because of the complexity and
length of the proceedings).
E.
XVIII.
Note also that, under the Criminal Justice Act, appointed counsel cannot
be paid for work done after counsel has formally withdrawn from
representation of the defendant, even if the work is to aid in the
transition of the case to new counsel. See United States v. RomeroGallardo, 245 F.3d 1159, 1159-61 (10th Cir. 2001).
The client normally is entitled to the case file held by the attorney.
A.
In a majority of jurisdictions, the client is entitled to the entire case file
held by the attorney, including the attorney’s work product. See Iowa
Supreme Court Attorney Disciplinary Board v. Gottshalk, 729 N.W.2d
812, 819-22 (Iowa 2007) (discussing jurisdictions in the majority and
the minority and adopting the majority approach that the attorney must
turn over the entire file to the client); In re Sage Realty Corp. v.
Proskauer Rose Goetz & Mendelsohn, 666 N.Y.S.2d 985, 987-89 (N.Y.
1997) (same); see, e.g., Hiatt v. Clark, 194 S.W.3d 324 (Ky. 2006).
(holding that client was entitled to entire case file, despite attorney’s
claim that work product did not have to be disclosed to the client, as the
client needed the file to pursue post-conviction relief); Means v. State,
103 P.3d 25, 30 (Nev. 2004) (holding that “the work product doctrine is
not an exception to the inspection rights conferred in [the applicable
Nevada ethics rule] and does not shield an attorney from having to
disclose his notes to his former client”); see generally Restatement
(Third) of the Law Governing Lawyers § 46(2) (2000) (“On request, a
lawyer must allow a client or former client to inspect and copy any
document possessed by the lawyer relating to the representation, unless
substantial grounds exist to refuse,”).
B.
Indeed, a number of states’ ethical rules and opinions specifically state
that an attorney should surrender the file to the client at the end of
41
representation or make copies of it for the client. See, e.g., Texas
Disciplinary Rules of Professional Conduct, Rule 1.15(d) (“Upon
termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client’s interests, such as . . .
surrendering papers and property to which the client is entitled” and
“may retain papers relating to the client to the extent permitted by other
law only if such retention will not prejudice the client in the subject
matter of the representation.”); Annotated Model Rules of Professional
Conduct, Rule 1.6(d) (ABA 5th ed. 2003) (same); Pa. Bar Ass’n Comm.
on Legal and Prof’l Responsibility, Formal Op. No. 2007-100, 2007 WL
1170779 (2007) (discussing client’s right to access, copy, and possess
attorney’s file, and stating that “[i]t is generally accepted that client files
are maintained by a lawyer for the benefit of his or her principal, the
client”).
C.
Courts also have recognized that the client is entitled to the case file.
See, e.g., Maxwell v. Florida, 479 U.S. 972, 976-77 & n.2 (1986)
(Marshall, J., dissenting from denial of certiorari) (stating that “[t]here
is no more accurate or reliable evidence of trial counsel’s actual
perspective and extent of preparation than the contents of the client’s
case file”); Spivey v. Zant, 683 F.2d 881, 885 (5th Cir. Unit B 1982)
(holding that “work product doctrine . . . does not apply to the situation
in which a client seeks access to documents or other tangible things
created or amassed by his attorney during the course of the
representation”); In Re George, 28 S.W.3d 511, 516 (Tex. 2000) (“The
attorney is the agent of the client, and the work product created by the
attorney during his representation is the property of the client.”); In re
Bernstein, 707 A.2d 371, 376 (D.C. Ct. App. 1998) (“This rule
unambiguously requires an attorney to surrender a client’s file upon
termination of representation.”).
D.
However, a minority of jurisdictions hold that an attorney’s work
product belongs to the attorney and not to the client. See Ill. State Bar
Assoc., Advisory Op. No. 94-13, 1995 WL 874715, at *6 (1995)
(concluding that an attorney’s work product does not belong to and need
not be turned over to the client and citing in support of its position
Federal Land Bank of Jackson v. Federal Intermediate Credit Bank, 127
42
F.R.D. 473 (S.D. Miss. 1989), affirmed, 128 F.R.D. 182 (S.D. Miss.
1989); Estate of Johnson, 538 N.Y.S. 2d 173 (1989); State Bar
Association of North Dakota Opinion 93-15 (November 17, 1993); Bar
Association of Nassau County, New York, Opinion No. 91-31
(November 18, 1991); Mississippi State Bar Opinion No. 144 (March
11, 1988); State Bar of Arizona Opinion No. 81-32 (November 2, 1981);
and ABA Informal Opinion No. 1376 (February 18, 1977)). But see
Gottshalk, 729 N.W.2d at 819-22 (Iowa 2007) (adopting the majority
“entire file” position because, among other reasons, attorneys are in a
fiduciary relationship with the client and owe the client candor, honest,
and good faith); In re Sage Realty Corp, 666 N.Y.S.2d at 987-89
(concluding that the majority position on the issue is the better position
for various reasons).
XIX. Selected legal principles and rules of professional conduct pertinent to
appointment of counsel under 18 U.S.C. § 3006A.
A.
Under the Criminal Justice Act (“the CJA”), 18 U.S.C. § 3006A, the
district court is required to provide representation for any person
financially eligible who is charged with a felony or Class A
misdemeanor, as well as other persons who are incarcerated or who face
incarceration. See 18 U.S.C. § 3006A(a)(1).
B.
A person for whom counsel is appointed shall be represented at every
stage of the proceedings through appeal. See 18 U.S.C. § 3006A(c).
C.
1.
If at any point the court finds that the person is financially able to
obtain counsel or to make partial payment for the representation,
it may terminate the appointment of counsel or authorize
payment, as the interests of justice may dictate. See 18 U.S.C. §
3006A(c).
2.
If at any stage of the proceedings, the court finds that the person
is financially unable to pay retained counsel, it may appoint
counsel. See 18 U.S.C. § 3006A(c).
“A person is ‘financially unable to obtain counsel’ . . . if his net financial
43
resources and income are insufficient to enable him to obtain qualified
counsel.
D.
1.
In determining whether such insufficiency exists, consideration
should be given to (a) the cost of providing the person and his
dependents with the necessities of life, and (b) the cost of the
defendant’s bail bond if financial conditions are imposed, or the
amount of the case [sic] deposit defendant is required to make to
secure release on bond.” VII Admin. Office of U.S. Courts,
GUIDE TO JUDICIARY POLICIES AND PROCEDURES, Appointment
and Payment of Counsel § 2.04 [hereinafter cited as “GUIDE TO
JUDICIARY”].
2.
Any doubts as to a defendant’s “eligibility should be resolved in
his favor; erroneous determinations of eligibility may be corrected
at a later time.” Id.
3.
“The initial determination of eligibility should be made without
regard to the financial ability of the person’s family unless his
family indicates willingness and financial ability to retain counsel
promptly.” Id. § 2.06.
4.
The court may find a defendant to be “eligible for the
appointment of counsel” and have him pay available funds to the
Clerk at the time of appointment or from time to time thereafter.
Id. § 2.05.
The district court must make an adequate inquiry into the overall
personal circumstances of the defendant to make a finding concerning
the necessity of appointment of counsel. United States v. Moore, 671
F.2d 139, 141 (5th Cir. 1982).
1.
Even if the defendant refuses to fill out a CJA Form 23 financial
affidavit because of his fear that it will be used in his prosecution,
it is an abuse of the district court’s discretion “not to pursue
further the matter of financial need for the appointment of
counsel.” Id.
44
2.
“CJA Form 23 is not a required statutory form. It is an
administrative tool to assist the court in appointing counsel.” Id.
E.
However, the burden of showing by a preponderance of the evidence
that counsel should be appointed rests upon the defendant, and a district
court is not required to rely on a terse affidavit by the defendant when
the government has come forward with evidence placing in doubt the
defendant’s eligibility for appointment of counsel. United States v.
Harris, 707 F.2d 653, 661 (2d Cir.), cert. denied, 464 U.S. 997 (1983);
see also United States v. Davis, 958 F.2d 47, 48 (4th Cir.) (“defendant
bears the burden of proving that he lacks financial means to retain
counsel”), cert. denied, 506 U.S. 878 (1992).
F.
In United States v. Gravatt, 868 F.2d 585 (3d Cir. 1989), the Third
Circuit explained that, when a defendant refuses to fill out a CJA 23
financial affidavit for fear that it will be used against him, the district
court can resolve the problem by one of two approaches:
1.
the district court may afford the defendant the opportunity to
disclose the required financial information for the court to review
in camera, after which the financial information should be sealed
and not made available for purposes of the prosecution; or
2.
if the district court deems an adversary hearing on defendant’s
request for appointment of counsel to be appropriate, the court
may grant use immunity to the defendant’s testimony at that
hearing. Id. at 590.
3.
See also United States v. Beverly, 993 F.2d 1531, 1993 WL
165348, at *1 (1st Cir. 1993) (unpublished) (citing and discussing
other courts that have adopted an approach similar to Gravatt).
United States v. Davis, 958 F.2d 47, 49 n.4 (4th Cir.) (noting that
district court avoided Fifth Amendment problem by examining
defendant about his financial situation ex parte and sealing
answers), cert. denied, 506 U.S. 878 (1992); United States v.
Anderson, 567 F.2d 839, 840-41 (8th Cir. 1977) (holding that
district court should have reviewed financial information in
45
camera); cf. United States v. Ellsworth, 547 F.2d 1096, 1098 (9th
Cir. 1976) (affirming denial of counsel where defendant invoked
his Fifth Amendment right to silence even though the district
court assured him that his financial information would not be
used against him), cert. denied, 431 U.S. 931 (1977).
G.
Note that “[b]y blocking legitimate inquiry into his financial condition,
a defendant implicitly waives his right to counsel.” Davis, 958 F.2d at
49; see also United States v. Owen, 407 F.3d 222, 225-26 (4th Cir.
2005) (holding that defendant waived right to counsel by failing to show
that he was entitled to appointed counsel and quoting Davis).
H.
Note also that a defendant’s “false statements in an application for
counsel under the [Criminal Justice] Act are subject to the penalties of
perjury.” Harris, 707 F.2d at 658.
I.
In addition, although a lawyer normally should not knowingly reveal
confidential information of a client, state professional ethics rules, such
as Rule 1.05(b)(1)-(3) of the Texas Disciplinary Rules of Professional
Conduct, list exceptions to this rule and allows a lawyer to reveal
confidential information: (1) to comply with a court order, a rule of
professional conduct, or other law; (2) when it is necessary to do so in
order to prevent the client from committing a criminal or fraudulent act;
and (3) to the extent necessary to rectify the consequences of a client’s
criminal or fraudulent act in the commission of which the lawyer’s
services had been used. See, e.g., TDRPC, Rule 1.05(b)(1)-(8); see also
TDRPC, Rule 1.05(e) & Comment 19; cf. VII GUIDE TO JUDICIARY,
supra, § 2.01C (stating that the CJA plan for each district should provide
that, if counsel obtains information that the client is financially able to
make payment for legal services, and the source of the information is not
a privileged communication, counsel shall advise the court). In
addition, a lawyer shall not knowingly make a false statement of
material fact or law to a tribunal, or fail to disclose a fact to a tribunal
when disclosure is necessary to avoid assisting a criminal or fraudulent
act. TDRPC Rule 3.03(a)(1) & (2).
46
J.
Under Texas law, for example, when a client represents to a court that
he is unable to afford counsel and defense counsel later discovers from
the client that the client’s statements to the court were false, TDRPC
Rules 1.05 and 3.03 require counsel to disclose the facts to the court to
avoid assisting the client in a criminal or fraudulent act. Sup. Ct. Tex.
Prof’l Ethics Comm., Op. No. 473, 1992 WL 792966 (May 1992).
K.
Similarly, if the client truthfully represents to the court that he is unable
to afford counsel at the beginning of the criminal case but his appointed
counsel later learns during the pendency of the case that the client’s
financial status has changed and that he now can afford to retain
counsel, TDRPC, Rules 1.05 and 3.03 require counsel to disclose the
facts to the court to avoid assisting the client in a criminal or fraudulent
act. Sup. Ct. Tex. Prof’l Ethics Comm., Op. No. 473, 1992 WL 792966
(May 1992).
L.
When appointed counsel learns that the client has obtained appointed
counsel by a criminal or fraudulent act, counsel should remember that
some state rules of professional ethics dictate that “[a] lawyer shall not
continue as an advocate in a pending adjudicatory proceeding if the
lawyer believes that the lawyer will be compelled to furnish testimony
that will be substantially adverse to the lawyer’s client, unless the client
consents after full disclosure.” TDRPC, Rule 3.08(b).
N :\W PD O C \O U TLIN ES\ETHIC S\FEC -O D S-SEM IN AR -LA-2008.w pd
47
Robert Dunham,
Assistant Federal Defender,
Eastern District of Pennsylvania
&
Stuart Lev,
Assistant Federal Defender,
Eastern District of Pennsylvania
Non-Capital Mitigation:
Conceptualizing Mitigation
Conceptualizing
Mitigation
Fall 2008
The Law of Mitigating Evidence
„
„
Individualized Sentencing Doctrine
Lockett v. Ohio, 438 U.S. 586 (1978) through Skipper v.
South Carolina, 476 U.S. 1 (1986) through Abdul-Kabir v.
Quarterman, 127 S. Ct. 1654 (2007):
The sentencer may not be precluded from considering in
mitigation any aspect of a defendant's character,
background, or record and any of the circumstances of
the offense that provide a reason to spare the
defendant’s life or otherwise support a sentence less
than death.
What Did the Court Mean?
„
Mitigation embodies “compassionate or
mitigating factors stemming from the
diverse frailties of humankind.” Woodson
v. North Carolina, 428 U.S. 280 (1976)
Eighth Amendment Permits
No Limitations on Mitigation
„
„
„
No mandatory death sentences.
No barrier to the presentation or
consideration of relevant mitigating
evidence
Sentencer must have a meaningful
mechanism to give full effect to mitigating
evidence as a basis to spare a defendant’s
life.
Relaxed Evidentiary Rules
„
„
„
„
Green v. Georgia, 442 U.S. 95 (1979)
(hearsay)
Williams v. Taylor, 529 U.S. 362 (2000)
(defendant seemed proud of carpentry
degree)
Abdul-Kabir, 127 S. Ct. 1654 (2007) (possible
neurological impairment)
Mills v. Maryland, 486 U.S. 367 (1988) and
McKoy v. North Carolina, 494 U.S. 433
(1990) (no unanimity requirement)
Tennard v. Dretke,
542 U.S. 274 (2004)
„
„
„
„
„
Mitigation does not have to be
causally related to the offense
Mitigation Since Tennard
Abdul-Kabir v. Quarterman, 127 S. Ct.
1654 (2007)
Smith v. Texas, 543 U.S. 37 (2004) and
127 S. Ct. 1686 (2007)
Brewer v. Quarterman, 127 S.Ct. 1706
(2007)
Other constitutional rights relevant
to mitigation
„
„
„
Sixth Amendment right to
effective counsel. Williams
v. Taylor, 529 U.S. 362
(2000)
Sixth Amendment right to
present a defense. Holmes
v. South Carolina, 547 U.S.
319 (2006)
Due process right to
disclosure of mitigating
evidence. Brady v.
Maryland, 373 U.S. 83 (1963)
„
„
„
Due process/equal
protection right to expert
assistance. Ake v.
Oklahoma, 470 U.S. 68
(1985)
Sixth and Fourteenth
Amendment rights to
impartial jurors. Morgan v.
Illinois, 504 U.S. 719 (1992)
Sixth and Fourteenth
Amendment rights to
verdict by an impartial
jury. Ring v. Arizona, 536
U.S. 584 (2002); United
States v. Gaudin, 515 U.S.
506 (1999); Sandstrom v.
Montana, 442 U.S. 510 (1979)
Sixth and Fourteenth Amendment
Rights to Verdict by an Impartial Jury
„
„
„
Errors on mitigation impair the right to a
penalty verdict based upon a proper
application of the law to the evidence
Improper voir dire
instructions or
questions
Improper opening and
closing arguments
„
„
Improper instructions
Jury questions
State-Law Extensions or
Equivalents of These Concepts
„
„
„
May provide rights to
present mitigation beyond
that required by the
Eighth Amendment.
Residual doubt –
Compare Oregon v. Guzek,
546 U.S. 517 (2006) with
People v. Gay, 178 P.3d
422 (Cal. 2008)
Execution impact, right to
allocution, etc.
„
„
„
State-law based rights to
experts, etc.
State-law based
weighing rules
These create due
process life and
liberty interests.
Hicks v. Oklahoma, 447
U.S. 343 (1980)
No Substantive Limits on Mitigation
„
Defendant must be permitted to present
anything relating to character,
background, record or circumstances of
offense.
State Statutory Issues
„
„
„
Enumerated vs. unenumerated mitigating
circumstances. Hitchcock v. Dugger, 481
U.S. 393 (1987)
Issues with literal reading of catchall
mitigators
Limiting language in statutory mitigators
(“extreme disturbance”; “significant
impairment”; “substantial domination or
duress”; chronological age)
Conceptual Limits on Mitigation
„
„
„
Mitigation does not have to excuse or justify
the offense. Eddings v. Oklahoma, 455 U.S. 104
(1982)
No requirement of any substantive nexus to
the offense. Tennard, Abdul-Kabir. (E.g., postarrest good conduct in prison or favorable prison
adjustment. Skipper)
No qualitative threshold requirement.
Tennard, McKoy
Inherent Mitigation
„
„
Almost retarded (Atkins v. Virginia, 536 U.S. 304
(2002)) or almost age 18 (Simmons v. Roper,
543 U.S. 551 (2005))
E.g., Tennard v. Dretke, 542 U.S. 274 (2004)
(describing as “inherently mitigating” evidence
of an IQ of 82 and functioning at the level of a
12-year-old child”; “[i]n light of petitioner’s
youth at the time of the offense, . . . testimony
that his ‘mental and emotional development
were at a level several years below his
chronological age’ could not have been excluded
by the state court”)
The Holistic View of Mitigation
„
„
„
„
„
„
„
How does looking at one aspect of mitigation
lead you to think about other aspects of a
defendant’s life?
Institutional Records
Witnesses
Cognitive/Developmental Issues
Emotional Deficits
Interpersonal Relationships
Social impairments
An Example of Conceptualizing
Mitigation
Poverty
Why is Poverty
Considered Mitigating?
„
„
Poverty is an aspect of a defendant's
background that provides a potential
reason to spare the defendant’s life.
It is a prototypical “compassionate or
mitigating factor[] stemming from the
diverse frailties of humankind.” Woodson
v. North Carolina
Conceptual Limits on Mitigation
„
„
„
Poverty does not have to excuse or
justify the offense. Eddings v. Oklahoma
No requirement of any substantive
nexus to the offense. Tennard, AbdulKabir.
No qualitative threshold requirement
(i.e., not “poor enough”). Tennard,
McKoy
Improper Impairments of Mitigation
„
„
Disparaging comments on poverty as a
mitigator (as opposed to whether the
defendant was actually poor or the
weight of the evidence of poverty)
Absence of an effective mechanism for
the jury to consider poverty as
mitigation without instruction on all of
the poverty-related mitigators
The Holistic View of Poverty
„
„
„
„
„
„
„
How does poverty lead you to think about other
aspects of a defendant’s life?
What institutional records document poverty
Who are the witnesses to poverty
Poverty-related cognitive/developmental issues
Poverty-related emotional deficits
Effect of poverty on interpersonal relationships
Social impairments relating to or caused by
poverty
Who are your witnesses ?
„
„
„
„
Witnesses to prove the fact of poverty.
Witnesses to prove that the client was
exposed to social conditions associated
with poverty.
Witnesses to prove that the client has
psychological issues related to poverty.
Witnesses to prove that the client has
cognitive/neuropsychological issues
related to poverty.
Proving the Fact of Poverty
„
„
„
„
anecdotal testimony from lay witnesses
testimony from institutional witnesses at
SSI, DPW, etc. re: actual financial status
and services needed by the family
testimony from child protective services or
other caseworkers
testimony from water, gas, and electric
companies
Client exposed to conditions
associated with poverty
Stories from lay witnesses and services providers
of incidents or conditions affecting the client
„
„
„
public housing officials or
housing experts re: public
housing conditions, lead paint
exposures, etc.
child protective services
expert re: critiquing social
service failures
forensic social worker on
effects of poverty on the
interpersonal dynamics in the
family
„
„
„
teachers/school
administrators on clientspecific matters, educational
issues, diminished
opportunities, and client’s
neighborhood
witnesses on high-crime
status of neighborhood,
client's exposure to violence
witnesses on relationship
of poverty to child
abuse/neglect and examples
of abuse and neglect of client
Witnesses to mental health
issues related to poverty
Psychological Issues
„ Same as with any
psychological issue.
„ Family, friends,
associates to testify
concerning incidents and
behaviors relating to the
psychological condition.
„ Lay experts and social
service providers.
„ Psychiatrist and
psychologist.
Cognitive and
neuropsych issues.
„ Same with respect to
each of the potential
causes of brain
damage/cognitive
impairment.
„ Neuropsychologist and
psychiatrist
Scope of Expert Testimony
„
„
„
„
Neuropsychologist on relevant aspects of
brain functioning.
Neuropsychologist on results of
neuropsychological testing and array of
impairments indicated by the testing.
Neuropsych on likely (multiple) etiology of
impairments.
Neuropsych and psychiatrist on how
poverty was a driving force.
Poverty is being poor
„
„
„
So what?
Humanize it. Personalize it.
Being poor is:
Not having money for food
Not having money for heat
Having mom’s boyfriend steal the public
assistance check for drugs and alcohol
No working toilets and smelling like urine
Teased and ostracized for tattered, dirty clothes
Poverty is Diminished Opportunity
„
„
„
„
Poor educational opportunities
Poor social services
Increased exposure to environmental
toxins
Increased exposure to socially toxic
environments
Mental Health Aspects of Poverty
„
„
What does it do to a child to be
desperately poor, desperately hungry,
without heat, without hope, in an often
violent and unforgiving world?
How do the social incidents of poverty
affect a child’s personality and
psychological make-up?
The Neuropsychology of Poverty
„
„
„
Poverty is directly related to brain damage
and cognitive impairment.
Feedback loop between cognitively
impaired infants and parents with
impaired child-rearing skills
By high school, average decrease of
approximately 15 IQ points compared to
other children
Environmental Feedback Loop
„
„
„
„
Kids raised in poverty have greater
tendency to be abused
Greater withdrawal and social isolation
Hang out with other abused and isolated
kids, exposed to more violence and antisocial activities
Greater likelihood of violence as response
of first resort
Poverty-Related Red Flags
for Impaired Brain Development
„
„
„
„
Genetic
Prenatal
Environmental
Developmental Opportunities
Genetic
„
Children in poverty have a higher
statistical probability of cognitively
impaired parents, creating a genetic risk
for developmental impairments
Prenatal Impairments
„
„
„
„
Poorer prenatal care and commensurately
higher risk of impairments in fetal
development
Higher risk of fetal drug and alcohol
disorders that affect brain development
Lower birth weight, which is associated
with developmental impairments
Infant nutritional issues, which further
impair brain development
Environmental Impairments
„
„
Greater exposure to environmental neurotoxins:
– lead paint
– drugs and alcohol
– overall environmental health risks
Increased exposure to developmentally toxic
environments:
– increased risk of child abuse
– increased risk of child neglect/abandonment
– increased exposure to violence
Educational Impairments
„
„
„
Statistically greater likelihood of less
educated parents and parents who do not
provide cognitive stimulation
Poorer quality schools and schools with
fewer educational materials
Greater likelihood of truancy and dropping
out
Neuropsychological Conditions
„
„
„
„
On average, one standard deviation IQ drop (MR
= 2 standard deviations)
Greater exposure to stress = greater secretion
of cortisol, which has long term developmental
risks. Direct link to PTSD
Greater likelihood that mental and emotional
disturbances will escape detection and
treatment, and worsen
Prolonged exposure to stressors predisposes to
frontal lobe disorders (impairments in impulse
control, judgment, consequential thinking,
emotional lability), and increases their severity
A Case Study: John Lesko
Institutional Records
„
“These records painted a much more vivid
picture because of the detail they
provided, and they provided
documentation of a number of mitigating
considerations that were not presented at
the resentencing: medical neglect,
educational neglect, social services
neglect, and the recognition that the
Petitioner needed psychological treatment
at an early age.”
The records reveal:
„
„
„
„
The Petitioner was destitute and resided in
deplorable conditions for his entire life.
There was no hot or cold running water.
The windows, floors, and doors of their
living quarters were broken or inoperable.
Insects and flies infested the home.
„
„
„
„
„
The Petitioner had many scars all over his
body.
He played with dead rats.
He had an unusual gait, and the
caseworker noted that she was sure that
there was “something wrong with him.”
His attendance at school was very poor.
Shortly after his younger sister, Kimberly,
was born, she was referred to the hospital
for diaper rash and malnutrition.
„
The Petitioner’s mother shared one
bedroom with four children, including the
Petitioner. She was unable to control the
children’s behavior, and then threatened
them and disciplined them inappropriately,
leading the caseworker to conclude that
there was “perhaps too strong physical
punishment of the boys.”
Home Conditions
„
The living quarters were filthy and
unsanitary, and were likely the cause of
chronic illness among the children: dirty
clothes, filthy floors, unclean bedding,
extremely “grimy” mattresses, no surface
that “did not need scrubbing,” no bathtub,
urine and fecal matter throughout, and
the gas was turned off in the winter
months.
Kids’ Appearance
„
The children and their mother were visibly
unclean as well: they washed their clothes
in the kitchen sink; the Petitioner and his
brother, Michael, were the dirtiest children
in the classroom – they were required to
wash themselves before entering the
classroom; they had no underclothing;
their clothes were too tight, were too
small, were torn, and their shoes had no
laces.
Effect on John
„
As a result of their destitute appearance,
their classmates shunned them. Not
surprisingly, the Petitioner had difficulty
learning and was held back in school.
As Time Goes On
„
„
„
„
The records tell of rats in the sink, accumulations of
garbage in the kitchen, and generally “no
improvement in the appearance of the house.”
The workers report “perennial filth,” extremely
substandard upkeep and care of the home,
unacceptable food management (no refrigeration),
and failure to keep the children clean.
When the Petitioner’s mother gave birth to Joseph,
she did not want to bring him home from the hospital
because she feared that the rats might harm him.
The children were frequently physically ill and injuries
would go untreated.
Red Flags of Brain Damage
„
„
„
„
„
unusual gait, exhibiting some
form of psychomotor difficulty
at an early age
developmental effects of
uninhabitable and deplorable
housing conditions
general and continuous neglect
at critical stages in brain
development
chronically suffered from
inadequate nutrition
mother was a chronic drinker,
indicating possible fetal alcohol
involvement
„
„
„
„
„
„
childhood insomnia,
hyperactivity and headaches
“episodic dyscontrol,” a form
of organically impaired impulse
control
long and continuing history of
high fevers and ear problems
multiple indications of head
trauma
long history of drug and
alcohol abuse and exposure to
environmental toxins, starting
at a young age
history of blackouts, indicating
brain cell damage
The Whole Story
„
“[T]he impression one gets from reading
the day-to-day, month-to-month, year-toyear episodes that are chronicled in the
record is that they are seemingly endless
and relentless – the cumulative acts of
neglect and abuse grow in magnitude, like
a snowball gaining in size and momentum
as it rolls down the hill.”
Neighbors
„
“Lorraine Pearson, a neighbor who offered
a considerable amount of charitable
support to the Petitioner’s mother and his
family, told firsthand of her interactions
with and observations of this helpless
family and her efforts to render aid.”
Brothers and Sisters
„
“The Petitioner’s siblings, Tillie and Joey,
told story after story of sexual abuse,
deprivation, corporal punishment, drug
and alcohol abuse, illness, filth and petty
criminal activity that were everyday
occurrences in the Petitioner’s childhood
home.”
Social Service Eyewitness
„
“The social workers, independent and
unbiased professionals, were the faces
behind the written words in the CYS
records, and as eyewitnesses, they
described their observations as no second
or third-hand reporter could.”
The Result
„
„
„
Counsel was ineffective for failing to
investigate and present mitigating
evidence
Death sentence overturned
New trial ordered on other grounds
Lori James-Townes,
Investigator, Mitigation
Specialist, Lori JamesTownes and Associates,
Baltimore, MD
&
James Tibensky,
Mitigation Specialist,
Federal Public Defenders of
Northern Illinois
Non-Capital Mitigation:
Working With Life History
Records
Working
With Life
History
Records
Why investigate a client’s life?
Comprehensive information gathering
Explanatory
Theme developing
Strategy building
Establishes your relationship with the
client & his/her family
Involves other people who care for the
client
Encourages support
Why gather records?
Reveal what your client & family members
can’t/won’t tell
Stimulate memory
No inherent bias thus more credible
Documents themselves are evidence
Support specific legal claims
Contain investigative leads
Authors can be witnesses
Record gathering
Use broad authorizations
Try not to use subpoenas unless no
alternative
Utilize public records
Get everything – don’t censor!
Send requests to all possible institutions
Categories of Records
School
Employment
Family and individual social service
Medical
Youth agency & juvenile criminal justice
Adult criminal records
Probation & parole
Military
Mental health
Immigration
Analysis of Documentary Evidence
1. Review for additional records to obtain
2. Identify, locate, and interview witnesses
3. Summarize data from records in
chronology
4. Organize information to determine
theories of mitigation
5. Select & retain appropriate expert to
supplement historical data
Morris, Nichols, Arsht & Tunnell LLLP
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
302-658- 9200
302-658-3989 (fax)
NEXT OF KIN
AUTHORIZATION FOR RELEASE OF MENTAL HEALTH RECORDS
To:
____________________________________________________________________
From:
I,_________________________, as the father of ____________________________,
(name)
(child’s name)
_________________, __ __ __-__ __-__ __ __ __, hereby grant authorization to any public or private
(date of birth)
(social security number)
agency, institution, individual or corporation, including but not limited to any attorney, school, youth facility,
physician's office, hospital, mental health center, addiction treatment center, family counseling center,
department of probation or parole, department of vital statistics or records, jail, prison or other detention facility,
bureau of investigation, or shelter, where he/she has been educated, evaluated, treated, held, confined or who has
ever been involved in providing me with legal or other services, to release to Morris, Nichols, Arsht & Tunnell,
LLP, 1201 N. Market Street, Wilmington, DE 19899, any and all records in your possession related to
him/her.
Disclosure should include, but not be limited to, admission and discharge summaries, nurse and
physician notes and orders, progress notes, discharge instructions, laboratory reports and records, medication and
prescription records, medical, social and mental health histories recorded by your staff in relation to my
treatment, mental health evaluations, psychometric testing protocols and raw test scores, and all other psychiatric
treatment records, including those related to treatment for substance and alcohol abuse.
In addition, I authorize any physician, psychologist, social worker, nurse, aide or other personnel active
in or familiar with my treatment, to communicate orally or in writing to the above designated representatives
concerning my history, treatment, prognosis and/or other topics of which treatment personnel may have
knowledge.
In authorizing this disclosure I explicitly waive any and all rights I may have to the confidential
maintenance of these records, including any such rights that exist under local, state and federal statutory and/or
constitutional law, rule or order, including those contained in the Delaware Mental Health Patients’ Bill of
Rights at 16 Del. C. § 5161 and the Delaware Substance Abuse Treatment Act, found at 16 Del. C. § 2201, et
seq. and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub.L. No. 104-191, 110
Stat. 1936 (1996).
This authorization is valid until revoked by me in writing. You may accept a photocopy of this
authorization.
________________________________________________
Morris, Nichols, Arsht & Tunnell LLLP
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
302-658- 9200
302-658-3989 (fax)
NEXT OF KIN
AUTHORIZATION FOR RELEASE OF MEDICAL RECORDS
To:
_______________________________________________________________________
From:
I,_________________________, as the father of _______________________________,
(name)
(child’s name)
_________________, __ __ __-__ __-__ __ __ __, hereby grant authorization to any public or private
(date of birth)
(social security number)
agency, institution, individual or corporation, including but not limited to any attorney, school, youth facility,
physician's office, hospital, mental health center, addiction treatment center, family counseling center,
department of probation or parole, department of vital statistics or records, jail, prison or other detention
facility, bureau of investigation, or shelter, where he/she has been educated, evaluated, treated, held, confined
or who has ever been involved in providing me with legal or other services, to release to Morris, Nichols,
Arsht & Tunnell, LLP, 1201 N. Market Street, Wilmington, DE 19899, any and all records in your
possession related to him/her.
Disclosure should include, but not be limited to, admission and discharge summaries, ambulance
records, emergency room reports, nursing notes, physician notes and orders, progress notes, discharge
instructions, laboratory reports and records, radiology reports, medication and prescription records, medical,
social and mental health histories recorded by your staff in relation to my treatment and mental health
evaluations.
In addition, I authorize any physician, psychologist, social worker, nurse, aide or other personnel active
in or familiar with my treatment, to communicate orally or in writing to the above designated representatives
concerning my history, treatment, prognosis and/or other topics of which treatment personnel may have
knowledge.
In authorizing this disclosure I explicitly waive any and all rights I may have to the confidential
maintenance of these records, including any such rights that exist under local, state and federal statutory and/or
constitutional law, rule or order, including those contained in the Delaware Mental Health Patients’ Bill of
Rights at 16 Del. C. § 5161 and the Delaware Substance Abuse Treatment Act, found at 16 Del. C. § 2201, et
seq. and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub.L. No. 104-191, 110
Stat. 1936 (1996).
This authorization is valid until revoked by me in writing. You may accept a photocopy of this
authorization.
_______________________________________________
Morris, Nichols, Arsht & Tunnell LLLP
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
302-658- 9200
302-658-3989 (fax)
NEXT OF KIN
AUTHORIZATION FOR RELEASE OF RECORDS
To:
______________________________________________________________________
From:
I,_________________________, as the father of _______________________________,
(name)
(child’s name)
_________________, __ __ __-__ __-__ __ __ __, hereby grant authorization to any public or private
(date of birth)
(social security number)
agency, institution, individual or corporation, including but not limited to any attorney, school, youth facility,
physician's office, hospital, mental health center, addiction treatment center, family counseling center,
department of probation or parole, department of vital statistics or records, jail, prison or other detention
facility, bureau of investigation, or shelter, where he/she has been educated, evaluated, treated, held, confined
or who has ever been involved in providing me with legal or other services, to release to Morris, Nichols,
Arsht & Tunnell, LLP, 1201 N. Market Street, Wilmington, DE 19899, any and all records in your
possession related to him/her.
In addition, I authorize any employee, personnel or contractor, including but not limited to, physician,
attorney, psychologist, social worker, nurse, aide or other personnel active in or familiar with the services
provided to me, to communicate orally or in writing to the above designated representative concerning my
history, treatment, prognosis and/or other topics of which such personnel may have knowledge.
In authorizing this disclosure I explicitly waive any and all rights I may have to the confidential
maintenance of these records, including any such rights that exist under local, state and federal statutory and/or
constitutional law, rule or order, including those contained in the Delaware Mental Health Patients’ Bill of
Rights at 16 Del. C. § 5161 and the Delaware Substance Abuse Treatment Act, found at 16 Del. C. § 2201, et
seq. And the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub.L. No. 104-191, 110
Stat. 1936 (1996).
This authorization is valid until revoked by me in writing. You may accept a photocopy of this
authorization.
______________________________________________
Lori James-Townes,
Investigator, Mitigation
Specialist, Lori JamesTownes and Associates,
Baltimore, MD
Non-Capital Mitigation:
Telling Your Client’s Story
L.Y. JAMES & ASSOCIATES, INC.
Sentencing Report and
Social History for Eric K.
James Jr.
11-27-07
Robert Biddle, Esq.
Nathans & Biddle, LLP
120 East Baltimore Street
Suite 1800
Baltimore, MD 21202
November 27, 2007
RE: United States v. Eric James Jr.
Dear Counsel:
Per your request, my office has compiled a sentencing report and evaluation of your
client, Eric James, Jr. I am aware that Eric James Jr. has pled guilty to being involved in
drug distribution in a supervisory capacity. I am aware that his sentencing proceedings
will occur on December 7, 2007.
This report was completed after completing the following interviews:
Eric James
Nyke Vuong
Laverne James
Johnny M. Joyner
Chien Vuong
Earnest Smith
Constance Smith
Defendant
Wife
Mother
Mother’s significant other
Brother-in-law
Uncle
Aunt
In addition I have relied on the following documents for my opinion:
Letters from:
1. Removed for confidentiality reasons ---other names changed to protect
identity
Records: Juvenile and Domestic Relations District Court For Chesterfield County, VA*
Letters unrelated to these proceedings:
1. A letter date, August 9, 1989, written by Eric describing his disappointment in
himself for not being able to live up to his family’s expectations*.
2. Letter from Mrs. Norris*
3. Letter of reference for West Point from
4. Letter of reference for West Point from
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5. Letter of reference for West Point from Letter from Eric’s pediatric dentist
remarking, “What a nice young man he is”. It was sent to Laverne after Eric’s
appointment (postmarked: 12/12/88).*
6. Thank you letter from Children’s Hospital for donations made by Eric.*
Various Certificates of Achievement*
Obituaries of:
Earnest Smith Sr. (May 2002)
Samuel James (February 1974)
Dorothy Mayo Smith (November 1970)
Education Records*:
Virginia State College Nursery School
Virginia Public Schools: Chesterfield County
Pictures:
• Eric with Cassius in arms feeding him*
• Eric with Nyke’s family, mother, Johnnie, and friends on vacation (x3)*
• Eric with Cassius at the beach*
• Eric proposing to Nyke*
• Eric and Chien with their sons*
• Eric feeding Cassius as an infant*
• Eric with Cassius and nephew at beach*
• Eric, Nyke and Cassius (Nyke holding Cassius)*
• Eric and Nyke *
• Eric, Nyke and Cassius (Nyke holding Cassius in lap)*
• Miscellaneous pictures of Eric during childhood, at West Point, etc.
Additional sources of information relied upon for my opinions:
Fryer, Ronald, “Acting White”. (Stanford University, 2007
Heman, Judith, Trauma and Recovery. (New York: Basic Books,1992).
Pelham, B. From Self-Conceptions to Self-Worth: On the Sources and Structure of
Global Self-Esteem. Journal of Personality and Social Psychology, 1989, vol 57.
Ezinearticles. (2007, May 22). Ending Self Sabotage Today. Retrieved 2007, from
http://ezinearticles.com/Ending-Self-Sabatoge-Today
*Document(s) attached to the report
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Findings
1. From the outside looking in Eric James Jr.’s life appears to one where he was
afforded every opportunity to succeed. While on the surface that is true, there
many events in his life and in the life of his family members that have influenced
and impacted his development.
2. Eric James’s development was marked by a history of successive traumas. His
history of trauma clearly influenced his development and decision making
abilities. According to Herman (1992) a traumatic event is defined as, an event
either witnessed or experienced, it represents a fundamental threat to one’s
physical integrity or survival. Responses involve intense fear, helplessness
and/or horror.
3. Unresolved traumatic experiences leave behind tangible cognitive, somatic and
psychological residue.
4. Eric’s feelings “symptoms”, thoughts, and behavioral choices makes sense, and
are inevitable, given what he has experienced. It is not surprising that Eric was
still successful (i.e. high school graduate, college graduate, and supervisor in a
criminal enterprise), because as humans we are hard wire to survive. However,
trauma victims they spend their lives either avoiding trauma or recreating the
trauma.
5. Decisions made by Eric whether resulting in positive or negative consequences,
were directly influenced by Eric’s history.
4
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6. There is also a reoccurring prevalent theme of personal failure, starting from his
abandonment, grandfather’s death and high school, later West Point and law
school.
7. Eric’s history of drug abuse and depression makes him eligible for substance
abuse and mental health treatment.
8. The correctional systems groups and mental health services are typically
formulated based on the cognitive behavioral treatment paradigm. This model
would be very effective for Eric because he is able to communicate and process
his feelings, emotions, and experiences. Unfortunately he had not taken the
opportunity to confront his issues in the past.
9. He is a strong candidate for treatment. Counseling would give him the
opportunity to learn to make better choices and deal with the influences that
directed him down the path to criminal behavior.
10. I strongly suggest that he be placed in an institution that will afford him the
opportunity to receive these services.
11. Eric is extremely amenable to treatment.
12. His amenability to treatment, relationship with his children, sense of responsibility
for his actions, sense of responsibility to his family, bond with his mother, bond
with Johnnie Joyner, relationship with his wife, intellectual abilities, desire to
change his behavior, level of remorse and sincerity displayed throughout this
process, in my opinion makes him a low risk for recidivism.
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Childhood Background
Eric James Jr. was born on May 9, 1968 to Eric James Sr. and Laverne James.
Eric and Laverne were both teenagers at the time of Eric’s birth. As a matter of fact
Laverne was a senior in high school and Eric Sr. had completed high school just one
year prior.
Parental and Family Background
Laverne James was born on August 12, 1949, to Ernest and Dorothy James.
She was born in the middle of 5 children, with an older brother and sister (Ernest Jr. and
Connie) and a younger sister and brother (Barbara and Ricky). Growing up, she was
always a bit of a tomboy, as she preferred playing sports, particularly basketball and
softball; to things like ballet and dating (her sister was the exact opposite). Due to these
factors, she had mainly male friends, but never had a boyfriend or sexual relations with
a boy her age before Eric Sr.
Her situation at home can be best described as tumultuous. Earnest Smith Sr.
was described by his children as very abusive. Laverne’s parents separated twice
before finally divorcing, with her father initially gaining custody, taking all of the children
but Barbara, believing that she was not his child. Her mother tried to get custody, but
was rejected by the courts. In the meantime, the children had to live with their father,
who was a taxi driver and never around, which led to Laverne feeling lost and alone.
Eventually, Dorothy, Laverne’s mother, was able to gain custody of the children. After a
short period of time she allowed Ernest Sr. to return to the house. This arrangement did
not last very long. His abuse toward her quickly worsened, and eventually Dorothy
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sought to have him removed from the house legally and permanently. Despite all of
this, Dorothy remained a supportive mother, and Laverne said that she was always
there for her.
In addition to the history of violence and abandonment in her family, Laverne was
the victim of child - sexual abuse. Laverne however, kept her abuse a secret as to not
disappoint her mother. She was a good student-athlete who was very concerned about
being successful in her mother’s eyes. Laverne played baseball, softball and basketball.
She did not become romantically involved with boys until she began to date Eric Sr.
Despite being a teenage mother, Laverne graduated from high school after
repeating her senior year. After marrying Eric Sr. they lived with his parents. This
allowed her to work, even while she was in high school to care for her child. Eric Sr. was
not the primary provider; Laverne was with the help of Eric’s paternal grandparents.
After graduation, she worked full time, purchased a car and became even more selfsufficient. This created a source of contention in the relationship with Eric’s father. He
was neglectful and consistently came to Laverne’s place of employment to get money.
He was also physically and emotionally abusive.
When Eric was two years of age, Laverne’s mother died at the age of 51.
Laverne lost one of her primary sources of emotional support. By the time Eric was 4
years of age; Laverne had saved enough money and paid off all of her debt. She
informed Eric Sr. that she was leaving and he physically assaulted her. Eric has strong
and painful memories of witnessing this event. She and Eric Jr. eventually moved with
her brother Earnest into her mother’s home. Earnest was married with children of his
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own as well. The two families resided together for several years before Laverne could
afford a place of her own.
Laverne did eventually move into her own place with Eric and raised him on her
own until he was an adult. Eric continued to spend time with his uncle, Earnest and his
family. Earnest attended his games, recitals, etc. Laverne has never married, but is
currently in long term relationship, with Johnny Joyner whom Eric is very fond of.
Eric James Sr.
Eric Sr. was the oldest son and first child (of two children) born to Samuel and
Alice James. Eric Sr. was described as self centered and spoiled. Very little is known
about Eric Sr., because Eric’s relationship with his father has been very distant and
strained over his life. However, Eric was very close to Samuel James, his paternal
grandfather. Eric Sr. had many other children, but never played an active role in Eric’s
life.
Trauma: Conception
Eric was born to teenage parents. The pregnancy was unplanned and as result
was traumatic for his mothering from the onset. Eric’s family had strong spiritual and
family values. They intended for Eric’s mother to complete high school and attend
college. Educational attainment was a prioritized goal in their family. In addition teenage
pregnancy was frowned upon by the community as well.
Eric’s mother was in the twelfth grade when she gave birth to Eric. Although she
had enough credits to complete high school and her delivery was in the late spring. She
was made to repeat her senior year. Laverne married Eric’s father, Eric James Sr. He
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was one year older than she. The relationship she had with Eric Sr. was her first. She
described herself as a “tom-boy” and knew very little about having a relationship.
Earnest Penny, Laverne’s older brother shared that his family expected her “to do the
right thing” and get married. Although they did not know much about James Sr. and was
not fond of what they did know they still expected her to marry him.
In and of itself, Eric Junior's birth was traumatic to Laverne. It was a life
changing event, both because she now had a child to take care of, but also because of
the stigma that came out of being a single mother in high school. The event was
exacerbated by the fact that her high school would not let her graduate with her friends,
but instead forced her to repeat her senior year. Her pregnancy was not something she
was proud of. This silence on her part could also have been detrimental to Eric, as he
received no pre-natal care.
While the social facets surrounding Eric's birth were traumatic, his actual birth
was also quite distressing. Two days prior to his birth, Laverne's placenta began to
leak, and because she was unaware what was happening, she used a sanitary napkin
instead of seeking help. After two days of suffering, she went to the hospital in shock,
whereupon the doctors discovered that she was fully dilated. She described her
delivery as difficult as well. She shared that she heard the other mothers’ delivering and
told the doctor she had changed her mind about giving birth. Eric was born with no
complications, but forceps were used to pull him through the birth canal.
Laverne James has a history of childhood trauma herself that includes witnessing
domestic violence as a child and abuse. Coupled with the devastation of being of being
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of teenage mother it may have been difficult for her to differentiate her trauma history
(baggage) from what was going on in Eric’s world.
After Eric was born, things at home did not improve for her. Eric's father was not
at all supportive of his son or Laverne. He didn't work, and was described by Laverne
as “an arrogant lady's man”, who would cheat on her but ask her for money because he
would not keep employment.
It is impossible for mom not to project her trauma onto her child. Eric as a child
could have felt her sadness and internalized those feelings. Eric was born into a
marriage that neither she nor Eric Sr. truly wanted. Eric Sr. was neglectful and abusive.
Another example of projection is that she could become over protective of Eric. Over
protected children have a poor sense of identity and also a poor self-esteem. Over
protected children don’t know how to navigate the world on their own because decisions
are always made for them. The low self esteem than becomes linked to a history trying
to please others before taking care of them.
Trauma: Death of Leaving Grandparents Home and Death of Grandfather
While living with the James family, Eric became very attached to his paternal
grandfather, Samuel James. Samuel was his anchor. While Laverne worked to provide
financially for Eric, Samuel became his primary care taker. During my first interview with
Eric, he remarked, “I have felt alone every since my grandfather died”. He went on to
say that life was changed forever after his grandfather’s death. Samuel James died on
February 14, 1974. Eric was five years-and 8 months old. After such a profound
statement, I had to verify the exact date that his grandfather died. I examined the
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obituary and found that Samuel James had 13 grandchildren; however, Eric Jr. was one
of 4 grandchildren mentioned by name. The family had very little insight as to how to
help Eric cope with this monumental lost in his life. Laverne decided that Eric should not
go to the funeral services.
When Eric was told of his grandfather’s death, which was unexpected, he
collapsed in his grandmother’s arms. However, Eric was taken to his grandfather’s
grave site for the burial but was locked in the car and had to watch from afar. Eric’s aunt
shared that he began to cry, scream and kick the car windows in an effort to get to the
grave site.
Eric shared that he cried about his grandfather until he was 22 years of age.
Family mentioned the impact of the lost of his grandfather during my interviews and in
their letters.
Emotional Disturbances:
It is evident that Eric lacked a relationship with a male role model for his entire
childhood until his mother introduced him to Johnny while he was at West Point. Eric
shard that after his grandfather died, he went into a deep depression and was
depressed until the twelfth grade. He blamed himself for not being there with his
grandfather and as many children do, internalized the blame for his grandfather’s death.
Eric threw temper tantrums if his mother brought a male home to meet Eric. Eric would
get mad; try to break banister and slam things in addition to crying.
Emotionally he could not handle this. He made it so difficult that his mother stopped
dating.
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After Samuel James’s death, Eric also developed ritualistic behaviors. He began
to clean his room obsessively; he would not let his mother touch anything in his room,
etc. He became very upset if you moved anything in his room or altered anything that he
arranged. He demanded to be clean at all times and would disrupt his outside play if he
got any dirt on his clothes. He constantly asked for reassurance from his mother; “Am I
clean enough? Am I a good boy”?
This behavior could resemble Obsessive Compulsive Disorders or be seen a
personal attribute, but for children who have experienced a traumatic event this is
actually the child’s attempt to control their environment by keeping everything in its
place. This is also common in children of divorce and separation. The child is attempting
to maintain a sense of order in their unpredictable, painful world. Eric exhibited all of
the classic symptoms related to childhood trauma:
•
Makes attempts to be perfect
•
Does anything they can to avoid anyone else abandoning him: being clean and
never dirty is another way to avoid rejection.
•
Magical thinking: children internalized traumatic event, they begin to believe they
are to blame. In fact, after a visit with his father, Eric Jr. told his mother, "You and
my daddy are different people and I don't want you to go through this anymore."
Meaning he did not want to visit his father anymore and be subjected to rejection.
•
Obsessive thinking and self-blaming results in cognitive distortions, even as an
adult
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Trauma: Father Abandonment and Witnessing Domestic Violence
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As previously mentioned, Eric’s father abandoned him at an early age. After
Eric’s mother left the James home, Eric Sr.’s involvement in Eric’s life was very limited.
She filed for child support when Eric was age 7 years of age. In fact after the couple
separated, Laverne petitioned the court several times to ask for intervention. In her
letter to court she made mention that Eric Sr. was not taking advantage of his allotted
visitation hours. Although he lived in the same town as Eric Sr. maintained his residency
in Chesterfield, he had no relationship with Eric. Eric became angry because his father
lived 15 minutes away and never came to his games, recitals, etc. Eric was able to
understand. He grew up feeling totally abandoned. Again he began to internalizing
those feelings because children begin to believe that their parents abandoned them
because there was something wrong with them. The fact that the abandonment
originates with a same sex parent, makes the event more traumatic.
The results are that Eric becomes terrified that if, “my father is a screw up, he’ll
be a screw up, because after all he is his father’s child. He internalizes and believes
that if his dad doesn’t want anything to do with him, there must be something wrong with
him; must not be good enough. This dynamics becomes a risk for children developing
self-esteem and identity issues. Such issues led to Eric consistently making poor
decisions. Such decisions were made based on the following dynamics:
•
Eric never felt worthy of succeeding
•
He consistently set himself up for failure (self sabotaging)
•
The self-sabotaging reinforces his feeling of worthiness
•
The impact of his low self-esteem mitigated by what he can do for others
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•
Selling drugs and making the type of money that he made became a means for
pleasing people around him and being accepted.
•
The material/financial success he achieved were means to cover what was
occurring internally.
Even as an adult, Eric attempted to reach out to his father. In 2002, Earnest Smith Sr.,
Eric’s maternal grandfather, died. Only two of his children, including Laverne James
attended his funeral. According to Laverne, this deeply saddened Eric. Following his
grandfather’s funeral, Eric made attempts to reach his father. He was clear that he did
not want his father to die and not have any of his children in attendance. Nyke shared
that Eric invited his father to her baby shower, when she was pregnant with Cassius.
When Laverne learned that Eric Sr. may come, she said she wasn’t coming to the
shower. Eric became very upset and distraught. Eventually Laverne agreed to attend
the shower. Eric Sr. did attend the shower with his wife and nine year old son. Eric
never processed how he felt about seeing his father.
Parental History
The positive outcome of his parental abandonment is that Eric has become
obsessed with being a good father. He and Nyke Vuong gave birth to his first son,
Cassius on January 1, 2005 and their second child, Eric James, III was born, October
2007. He consistently displays an undeniable amount of love for his children. His
primary concern each time I have seen him has been for his children. He has become
emotional during every interview, when he discusses his sons. He is very concerned
about their future and wants to be a good father. His devotion for his children is
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exceptional, given his circumstances one would assume that the focus would be on him,
but it is clearly the love for his sons and his aching desire to be a good father that keeps
him from falling apart.
As mentioned previously, Eric’s biggest fear was being a “screw up like his
father”. Eric screwed up when he left the United States and went to Asia. In 2005,
shortly after Cassius’ birth Eric resided in Asia for almost 6 months. When sharing this
information with me he cried inconsolably. He shared that he felt that he was placing his
family at risk and decided to leave. He claims to have invested in property in Thailand
and that the individual stole of his money. He was introduced to the through Nyke’s
family. He has not knowledge of the whereabouts of the man who stole his money.
While in Thailand he called Nyke constantly and missed Cassius tremendously. He felt
guilty for missing so much time out of Cassius’ life during, and returned to the states
because he missed Nyke and his son immensely. I believe it was the connection and
bond he had with Cassius that influenced Eric to return to his family.
Even prior to his incarceration he was described as a devoted father. He has
been involved with Cassius since birth and consistently talks about the needs of his
children being more important than his needs. Cassius was born with club feet. As a
special needs child, he had many doctor’s appointments and evaluation. Eric made sure
to attend Cassius’ doctor’s appointments and evaluations.
Issues of Identity
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While growing up in a good area was clearly beneficial to Eric's development
academically, it also had some negative aspects. Eric was reared in a predominantly
white area. He was in all honors classes, as his teachers felt challenging him
academically was necessary. However, there was only one other African-American
child in the program and he was the only African-American male. After reviewing his
report cards Eric was an average student, but teachers were constantly documenting
behavioral issues (not listening, possible hearing issues, and hyper behavior). The
negative aspects of this situation are twofold. First of all, it created issues of identity.
For a very long time, he did not understand the difference between being white and
being African-American. He was sheltered from the harsh realities of prejudice and
discrimination. All of Eric’s friends where either white or Asian.
In addition, he was clearly a precocious child, but he was teased for being smart,
which caused him at times to “dumb himself down”. He would not do well in school on
purpose. His teachers recognized what was going and alerted Eric’s mother, they
encouraged her to have Eric remain in the higher-level course.
However the teasing and rejection from his peers, led to feelings of loneliness.
These feelings persist to this day, as he reports always feeling alone, even in crowded
rooms. These feelings lead to his curious choice of West Point for his undergraduate
institution. According to his mother, he had many suitors, including University of
Virginia, James Madison University, The National Coast Guard, and the Naval
Academy. His mother believes he chose West Point because it was free, and he
wanted to spare her the financial burden that going to a different university would entail.
However, Earnest Smith shared that Laverne and the family wanted Eric to attend West
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Point. Laverne sought out the recommendations and completed the paper work that
was necessary for Eric to be accepted.
Growing up, Eric was a very athletic child, and played basketball for his high
school. He was injured his junior year of high school, but returned the next year and
had a very successful senior season. The team was better his junior year, however, and
Eric believes that he missed out on many of the scouts, and didn't get as much
exposure his senior year as he would have gotten one year previously. Yet there was
an opportunity for him to attend the schools of his choice James Madison University or
the University of Virginia.
Trauma: West Point
West Point environment can be traumatizing by even the strongest cadets. Many
have deemed by many as abusive and demoralizing. Eric reports having problems at
West Point and claims that he struggled to “fit in”. He believes that he was
discriminated against while he was there, and came to the realization that race did
matter.
While at West Point, Eric began to experiment with cocaine. He used cocaine
during social events with other cadets. His use was eventually reported to the school.
Eric was forced to leave West Point just prior to graduation. He admitted that he was a
recreational user of cocaine at the time.
When Eric returned home from West Point his mother was angry, ashamed and
embarrassed. She stayed in the bed for days and did not speak to Eric. Eric was aware
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that his mother was ashamed of him and remarked, “My mother treated him like I was a
crack head”.
Trauma: Beating in Basement
Laverne wasn’t the only person in the family unable able to cope with her
disappointment of Eric. Eric’s uncles and Rickie and Earnest were also disappointed.
Around the same time Eric was expelled from West Point, his cousin, Earnest’s son,
was expelled from Virginia State University. Earnest called Laverne and asked her to
leave the home. Eric who was 21 years of age at the time was directed to stay home.
Earnest, Rickie and an unidentifiable white-male entered Laverne’s home with Earnest’s
son. They order Eric and his cousin to the basement of the house. The two of them
were beat brutally by his uncles and the gentleman who accompanied them. They also
videotaped the beating. Eric’s uncle reported that he still had the video tape and that he
had beaten Eric and his cousin “within an inch of their lives”. Ernest shared that they
were teaching them what he real life was like for a black man in society. He had no guilt
or shame regarding his actions.
Upon his return from West Point he was very emotional and cried all the time. He
shared his feelings with his uncle. He even told his uncles about the unresolved grief he
had concerning his father’s death. Instead of his uncles being supportive, they beat him
and as his uncle admitted, “Within an inch of his life”. That is one reason, for example,
why Eric believes he really needed a father. He believes that had his father been living,
the beating would have never happened. Eric was so ashamed of this beating that he
L. Y. JAMES & ASSOCIATES, INC. | 3600 Clipper Mill Road – Suite 201- Baltimore, MD 21211
18
did not tell his mother. She was unaware until recently. Eric’s guilt, shame, and
experience of being brutally beaten by a man who claimed like a father to him, led to his
disappearance. He left the state of Virginia and moved to California. Although he
sporadically kept in contact with his family, he didn’t come to East Coast for years.
California
After arriving in California Eric applied and was accepted into Berkeley. He felt
his mother would be more accepting of him if he completed his education. In 1991
earned a degree in Political Science. He kept his graduation and success a secret
initially. He then enrolled in Law School at the University of San Francisco. He attended
law school there from 1992-1994. He did well his first year, but struggled the next. He
had to repeat his second year courses. After failed his second he wasn’t eligible to
attend the school.
It was during law school that Eric began to struggle. After failing out of law school
he became depressed. He was working at a night club and began working full time a
door man and bouncer. His rent was behind by three months and he was surviving on
rice and cereal. He was too ashamed to call his mother and ask her for assistance, he
felt he had failed again. It is during this time that he became involved in drug dealing
and using. His new friends became his family.
19
L. Y. JAMES & ASSOCIATES, INC. | 3600 Clipper Mill Road – Suite 201- Baltimore, MD 21211
Results:
•
Eric tried to create families for himself. He pressured his friends to have a bond
with him. He expected the same in return type of commitment in return.
•
Most of his decisions were based on avoiding rejecting and pain associated with
rejection, and holding on to person’s who he felt were his friends or “family”. He
felt that the bond w/ his family was destroyed forever.
•
Eric constantly tried to recreate a family but realizes now that it was not fair for
other person. He tried to force a level intimacy that he wanted even cases where
it was not reciprocated.
•
While in California Eric developed a drug addiction to cocaine.
•
Drug use becomes a coping mechanism to deal with his depression, feelings of
inadequacy, loneliness, etc.
Eric returned to the Virginian area in 1999. He used his knowledge to engage in
the nightclub scene in the District of Columbia. He spent his time frequenting dance
clubs, restaurants and strip-clubs. He was known to “treat” his friends, associates, and
strangers to dinner, drinks, etc.
He began to engage with his family, telling them that he was involved in
investing. It is not coincidental that Eric chose not to return to Virginia until he was able
to show his family that he was successful. After the brutal beating he suffered and what
he interpreted as his family disapproval, following his West Point expulsion, he felt he
had to gain their respect again. Just as he lavished his friends with trips and fronting
restaurant and bar tabs, he did the same for his family.
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20
Trauma: Relationship(s)
Eric’s relationship history is traumatic because he is constantly trying to recreate
something that he never had growing up. His energy and focus are influenced by his
upbringing and childhood experience. Therefore he recreates trauma in his life because
that is what is unresolved for him.
Eric had several relationships before he began to date Nyke Vuong. Most of the
relationships were ended by his partner. His mother stated that he was always getting
his heart broken. He used the money that he made to purchase gifts and finance trips
for his family, friends, associates, etc. He was typically mistreated in his relationships
and appears extremely co-dependent. Meaning that the relationship and the needs of
the person he is in the relationship with become more important than his own needs.
Therefore he tends to make excuses for those who mistreat him and was unable to
recognize the unhealthy aspects and recurrent dynamics in his relationships. He
attempted to marry Nyke on two other occasions before, they recently married.
Even today his relationship with Nyke causes conflict with his mother. Nyke
admits that Eric is able to show love and communicate his feelings much better than
she. She describes herself as guarded and hardened. She admits that when Eric
becomes emotional she tells him, “Stop acting like a girl”. She described him as needy
(see interview note, June 5, 2007). Nyke’s brother, shared similar feelings. He felt that
Nyke was very “hard on Eric” and that he was constantly trying to stay in her good
graces. The couples argued frequently, but Eric was the peacemaker in the relationship.
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21
Substance Abuse History
As previously mentioned, Eric began experimenting with drugs while at school at
West Point. Over the course of 10 years his social used progressed to daily using. At
the time of his arrest his was using cocaine and drinking on daily basis. He shared that
he typically drank to mask his drug use. This is very common among addicts, as it much
more acceptable to have a “daily” drink versus using cocaine daily. Again Eric’s use was
enmeshed with his guilt of failure. He was very ashamed of his use and in fact kept it a
secret.
When questioned, Nyke admitted that she was unaware of his addiction, but
consistently confronted him on his alcohol usage. She acknowledged that he drank
daily. She also acknowledged that she confronted him on behaviors that made him
appear to have a “problem”. She said that she had asked Eric on several occasions
whether or not he was using drugs. When she learned of Eric’s disclosure (August
2007), she felt betrayed and hurt. She was very angry and threatened to end their
relationship.
Current Functioning:
Eric has been detained since his arrest. He has not been a behavioral problem
while incarcerated in the detention center. He has maintained (when permitted) constant
communication with his family, especially Nyke and his children. He has held a job in
the kitchen without incident.
L. Y. JAMES & ASSOCIATES, INC. | 3600 Clipper Mill Road – Suite 201- Baltimore, MD 21211
22
It is my opinion that he has grown emotionally and began to understand his life
and the context of his decisions. Again based on the above report I would encourage
your honor to consider the recommendation stated in the beginning of my report.
My Background
I, Lori James-Townes, LCSW-C, hold a license in clinical social work. I have also
completed my formal classroom requirements for my PhD in public health. My research
focus for my doctoral thesis will be in the areas of criminal justice policy, inmate
populations, and mental health. I specialize in forensic matters including mitigation in
capital cases and non-capital post-conviction cases, and other mental health
psychological stresses. Since 1989, I have worked in over 45 capital and criminal
cases. These cases have been at the trial and post-conviction levels, in federal and
state courts. I have trained and presented extensively in the area of mitigation in capital
cases, locally and nationally. My resume is attached to this document.
Social workers specially trained to assist with criminal sentencing procedures
help attorneys and courts to understand the defendant in the context of the factors that
lead up to the offense. Social workers assist in making a coherent presentation to the
sentencer on matters germane to penalty determination, including the environment in
which the defendant was raised and the effects of this environment upon the individual’s
development and mental status; the defendant’s abilities and/or contributions to society;
the nature and extent of any mental and medical impairments from which the
defendants may suffer and which may have influenced the client’s perception,
L. Y. JAMES & ASSOCIATES, INC. | 3600 Clipper Mill Road – Suite 201- Baltimore, MD 21211
23
judgment, and behavior at the time of the offense; and any other factors that may
mitigate punishment.
Please do not hesitate to our office with any questions, concerns or additional request.
Respectfully Submitted,
Lori James-Townes, LCSW-C
24
L. Y. JAMES & ASSOCIATES, INC. | 3600 Clipper Mill Road – Suite 201- Baltimore, MD 21211
SENTENCING REPORT
November 19, 2002
Honorable Linda Evans
United States District Court Judge
Re: Bradshaw, Sam, Junior
Dear Judge Evans:
Sam Bradshaw, Junior, “Sam”, has been two very different people in his relatively short life.
His parents describe him as a child and as a young adult as being every parent’s dream son. Barbara, Sam’s
mother, told me that her oldest son was an Honor Roll student throughout his life and made the National Honor
Society. His father, Sam, Senior, who is a former school teacher, says that Sam was an Honor Roll student from
first grade through college. He graduated from the Illinois Institute of Technology with a degree in accounting,
attending on an academic and basketball scholarship. Although Sam is the oldest surviving child, the
Bradshaws had a stillborn son before Sam was born. His mother says that Sam was spoiled as a result of the
loss of their first child and because he was the oldest.
When Sam and his brothers were young, their father emphasized sports as a way of avoiding negative influences
such as gangs. The boys traveled as far as Puerto Rico, New Jersey and Florida to play Pee Wee Basketball.
This model child and young man fell into heavy marijuana and alcohol use when he was about twenty-two years
old, after he finished college. He would drink a six pack of beer a day and smoke half an ounce of marijuana a
day. He spent more and more time with friends who were members of the Gangster Disciples street gang. His
parents noticed the changes in Sam but they saw that he managed to keep a job and was not getting arrested.
Both of his brothers were arrested more than half a dozen times each and have been convicted of many criminal
offenses, so Sam stood out as a positive contrast to them. Both of his brothers became addicts as well.
I met with Barbara Bradshaw, Sam’s mother, at the family home in Hometown, Illinois. She lives there with her
husband, Sam Senior, and her son Bill. Ms Bradshaw said that her sons have all caused a lot
-2-
Sam Bradshaw, Jr.
continued
of trouble in her life. “I’ve got a fighting family. I did not come from a fighting family.” She is grateful that
Sam has changed so completely from an being addict who was in trouble all the time to the humble, caring son
that he has become. Neighbors have moved out of the neighborhood to get away from the Bradshaws, she said.
Both the next-door neighbor on the north of their home and the one to the south have moved in recent years to
get away from the chaos and crime that Bill and Silas have brought to the area.
Although his drug and alcohol use started when he was much younger, it was when he was twenty-six that Sam
first tried cocaine. By the time he was twenty-seven he became a cocaine, a “crack”, addict. This was the time
in his life when he started getting arrested. He lost a good job, as a Senior Accountant for the Chicago Housing
Authority, because he failed a drug test, because he was an addict who couldn’t control his crack use long
enough to pass an employment urine test. This man who had graduated with honors from the Illinois Institute of
Technology ended up working as a carnival ride operator because he could not hold down a “regular” job and
because no one else would hire an addict.
He had alienated his family through his crack use. He would go into the attached garage of his own home to
smoke crack with friends and lock the door so that his parents, in the next room, would not know what he was
doing. His mother changed her pension survivor’s benefits to reduce Sam’s percentage if she should die. He
stopped caring for his appearance. And he got arrested.
It was the federal arrest that turned Sam to re-inventing himself. Under the direction of Pretrial Services he
entered the residential substance abuse treatment program at the Gateway Foundation in Lake Villa. He has
literally turned his life around. He is a new person.
Reverend Frank Marcus is an Assemblies of God minister who, about three years ago, took the responsibility of
the Calvary Christian Center’s ministry to people who are suffering from the disease of addiction. The Calvary
Christian Center is the ministry arm to Gateway Foundation in Lake Villa. It was in this capacity that Rev.
Marcus met Sam. He told me that his first impression of Sam was that Sam was frightened by all that was going
on in his life. “Sam almost felt like he was in jail, but was convinced that he had made the right decision.” Rev.
Marcus says that Gateway has a very regular, regimented program that makes many clients feel as though they
are in a system that is more scheduled and rigid than what they can tolerate.
Rev. Marcus says that since the first couple of weeks of Sam’s being in treatment, he could tell that “Sam had
surrendered to a higher power. The crisis stage has past and Sam still retains his commitment. Even if he was
to get a prison sentence, you will find him ministering to the other prisoners. In or out, three years from now he
will be ministering, he has leadership qualities.”
Sam has decided not to take higher pressure jobs, just to keep things simple and not go too fast. Sam
demonstrates humility. He takes the garbage out at Burger King where he works. “Sam has a servant’s heart.”
-3-
Sam Bradshaw, Jr.
continued
Rev. Marcus says that the and his wife have had “five hundred people give their lives to the Lord. We have kept
in touch with ten percent of them and half of those have kept their sobriety. Sam is a miracle.”
Rev. Marcus added that he has been asked to write letters of recommendation for about three hundred people
over the course of his ministry. He has written only one before he wrote the letter for Sam which was available
at the July hearing before Your honor, a hearing which Rev. Marcus attended.
I spoke to a number of other people who have known Sam through his period of recovery. Mr. Peter Richardsen
was Sam’s counselor at Gateway. He told me that, while in treatment, “Sam made a firm commitment to
change his life for the better.” When I asked him about Sam’s prognosis for future success, he said that “(Sam)
started ahead of the game because he is educated and has a good work history.” “He will do well if he stays
with the program.”
John Smith is a counselor at the Bridge House recovery home in Waukegan. Sam went there after graduating
from the program at Gateway. Mr. Smith has worked in the addictions counseling field for nineteen years and
has been employed at Bridge House since 1987. He told me that he did not have Sam’s file as it had been sent
to the main office after Sam’s discharge. He remembers Sam well, however. Sam “came in, did what he
needed to do and took responsibility for his actions.” Sam left the program “completely committed to his
recovery.” He returns to Bridge House for meetings and to help run meetings.
Mr. Smith describes Sam as “trustworthy, genuine and service oriented.” He puts Sam in the top five per cent
of the thousands of people with addictions that he has met in terms of Sam’s commitment, his determination to
stay away from drugs, his willingness to follow the direction of his counselors and peers, and in his ability to
surround himself with positive people. Mr. Smith says that this last characteristic is, in his opinion, crucial for
long term sobriety. “Having positive relationships with other people, being real and honest, that’s what keeps a
person from relapse.” “Sam’s potential for relapse is minimal based on his support network and positive
relationships.”
For many people it is an important part of recovery to participate in self-help group meetings. Narcotics
Anonymous (NA) groups, as do Alcoholics Anonymous groups, strongly urge members to have a “sponsor”, a
person with a solid history of recovery who is available at all hours to help a fellow recovering person in times
of need. Neil Jackson has been Sam’s sponsor since Sam was in Bridge House. Mr. Jackson serves on a
committee called Hospitals and Institutions for NA. Mr. Jackson was at Bridge House to assist in running an
NA meeting. Sam asked him if he could be Sam’s sponsor in NA and Mr. Jackson agreed. They have been in
close contact ever since.
Mr. Jackson says that Sam has proven himself to be “an unusually honest person who has never blamed anyone
else for his problems.” This honesty and humility are important aspects of recovery, according to Mr. Jackson.
Sam has stayed actively involved with Narcotics Anonymous, another very important part of recovery from
-4-
Sam Bradshaw, Jr.
continued
cocaine addiction. Sam and Mr. Jackson see each other at an NA meeting held at Gateway’s Lake Villa facility
every Sunday. Sam also serves on the Committee for Hospitals and Institutions. He is the President of Oxford
House’s residents’ organization and helps to conduct NA meetings at the North Chicago Veteran’s
Administration Hospital.
Mr. Jackson told me that Sam is excited about his recovery and accepts every opportunity to help others with
their recovery. He accepts service responsibilities without delay. Yet he does all this as “a humble soul”
according to Mr. Jackson. “He is living the program, not just talking it.” Mr. Jackson does not believe that Sam
will ever relapse as long as he stays with a sponsor and keeps going to meetings.
Mr. Victor Leonard, a counselor at the Gateway Foundation, who knows Sam separately from Mr. Leonard’s
working at Gateway, commented on Sam’s leadership at Oxford House, the recovery home in which Sam
currently resides. Sam was the house treasurer and now is the president. Mr. Leonard describes Sam as an
outstanding person whose attitude, performance and participation in Oxford House activities are an inspiration
to everyone associated with Oxford House.
I first met Sam when I visited him at Oxford House. He had been there about ten weeks when I saw him. It had
been almost eight months since he had entered Gateway. I learned that, prior to his arrest, he had been using
crack daily, often with marijuana and alcohol. Since his arrest he has not used any of those substances again.
There are many indications of Sam’s change of character. He has become willing to accept responsibility for
the harm he has caused others. He has renewed his relationship with God. Sam has intentionally humbled
himself by accepting employment as a janitor at a Burger King restaurant.
I was impressed with Sam’s ability to identify his drug “triggers”, the things that might cause a relapse, and his
grasp of what specific behaviors he needs to emphasize in order to remain in recovery. In the twenty-seven
years that I have been in the federal criminal justice system, of the thousands of people who suffer from
addictions that I have dealt with professionally as a Correctional Officer, a Pretrial Services Officer Drug and
Alcohol Treatment Specialist and now as the Mitigation Specialist for the Federal Defender Program, Sam is
one of less than a handful of people I have met who has made such uncommon, truly extraordinary, progress
from the very moment he entered treatment. His willingness to humbly follow instructions, to serve others and
to commit to a life without drugs and alcohol all set him apart form the more usual person who is referred for
treatment through the criminal justice system, in my experience.
The more typical client would start out motivated by the fear of the consequences that could be imposed by the
court. But this fear is exactly the sort of emotion that a person who suffers from addiction usually buries by the
use of drugs or alcohol. And, being in treatment for only a short time, the average person goes back to what he
or she knows for a fact will ease that anxiety and shame: using drugs and/or alcohol. Going to jail, making
their legal situation worse, the threat of a longer sentence for failure to comply with bond conditions are all not
-5-
Sam Bradshaw, Jr.
continued
so frightening to a person whose addiction has already ruined his or her life, destroyed their relationships with
family and friends and probably brought them face-to-face with an unpleasant death more than once. The
guaranteed temporary relief of substance use wins out. While we would hope and would like to believe that
every person released into a treatment program will improve his or her life, the fact is that it does not happen
but, in my experience, a fraction of the time. And, even for that minority, the course of their progress is rarely
linear.
Once in a great while, however, a person comes to be arrested at just the right moment in their life when they
are truly open to making the efforts for major changes in their life. In my nine years as the treatment specialist
for Pretrial Services, I only supervised one person who made the dramatic changes that Sam has made. Five
years later she has not faltered in her progress, she has not used drugs again and she has rebuilt her life and
family relationships to the point where they are better than they were before her becoming addicted to cocaine. I
would expect the same outstanding results with Sam. As Reverend Marcus said, Sam is a miracle.
________________________
James Tibensky, Mitigation Specialist
Illinois Certified Addictions Counselor
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA )
)
v.
)
)
SAM BRADSHAW
)
Judge Linda Evans
No. 00 CR 123-1
DEFENDANT SAM BRADSHAW’S SENTENCING MEMORANDUM
AND MOTION FOR DOWNWARD DEPARTURE
SAM BRADSHAW, by the Federal Defender Program and its attorney, ROBERT D. SEEDER,
respectfully moves this Honorable Court pursuant to 18 U.S.C. §3553, and §§5K2.0 and 4A1.3 of the United
States Sentencing Guidelines, to depart downward from the applicable guideline range. In support of this
motion, Mr. Bradshaw states the following:
I.
INTRODUCTION
In the throes of a long-standing and overwhelming crack cocaine addiction, as well as other substance
abuse problems, Sam Bradshaw robbed the Jackson Park post office of $766 on January 8, 2001. A college
graduate with honors in accounting, Mr. Bradshaw was arrested on September 21, 2001. Five days later,
Mr. Bradshaw was released on a 25,000 recognizance bond with a specific condition of in-patient drug
treatment. Unbeknownst to Mr. Bradshaw, his life had veered onto a path of recovery and renewed promise.
Since his release in September, 2001, Mr. Bradshaw has not used any type of drug. Despite frequent
testing procedures employed as a condition of his release and treatment, he has not had a positive test result.
He has successfully completed in-patient drug treatment at Lake Villa Gateway and fully participated in outpatient therapy. He has graduated from one group recovery home, Bridge House, and has since resided for
several months at another group recovery home, Oxford House. At Oxford House, he has risen to the
position of house president after being its treasurer. (See Attached Sentencing Report by James Tibensky,
p.4).1 While living at Bridge House, Mr. Bradshaw found a job in December, 2001, where he remains
employed as of this writing. (PSI at 24).
A. Sam Bradshaw’s Life Before His Pretrial Release in September, 2001.
1
References to James Tibensky’s Sentencing Report will be cited as “Sent. Rep.”
followed by the page number.
Sam Bradshaw is a 31 year old man who was born and raised primarily in the Chicago area.
(Presentence Investigation Report at 18).2 His father was a public school teacher. His mother was a clerk for
the Cook County Circuit Court Clerk’s Office. (PSI at 18-19). Although from Mr. Bradshaw’s perception
his was a loving home, the presentence investigation report reflects a turbulent disruptive environment where
gang influence and criminal activity touched several members of Sam’s family.
Mr. Bradshaw’s two younger brothers are gang members and have long criminal histories including
multiple convictions for crimes of violence and drug offenses. One of his brothers is considered armed and
dangerous by local law enforcement. (PSI at 19-20). His father also has a criminal history involving
convictions for battery, theft and aggravated criminal sexual abuse. (PSI at 19). Mr. Bradshaw’s sisters have
police records as well. (PSI at 20). In his early teenage years, Mr. Bradshaw’s parents separated and he lived
in California with his mother and siblings until his parents reunited. (PSI at 18). Mr. Bradshaw’s mother,
Barbara Bradshaw, stated that she had “a fighting family”; that her sons have caused a lot of trouble in her
life and that things were so bad that neighbors moved away in order to avoid her two younger sons. (Sent.
Rep. 1-2).
From this environment, Sam Bradshaw graduated with honors from high school, went to college and
graduated from the Illinois Institute of Technology (IIT) in 1993 with a Bachelor of Science degree in
accounting with honors. (See attached IIT Transcripts). He worked at Sprint Cellular from 1992 to 1998,
initially as an intern, and then as a staff accountant. (PSI at 25). Despite the outward appearance of success,
Mr. Bradshaw could not completely escape the negative influence from his neighborhood and family.
He began using marijuana during college and more heavily following his graduation. (PSI at 23; Sent.
Rep. 1). A drinking problem was also spiraling out of control during the years that his drug use was
increasing. Id. Exacerbating the situation, he began socializing with the gang members in his community
resulting in mounting negative influences and peer pressure. (Sent. Rep. 1)
Ultimately, Mr. Bradshaw’s drug use escalated to smoking crack cocaine and his descent into drug
addiction was in full free fall. He left Sprint in 1998 following his continued use of crack and lost a job
opportunity as an senior accountant with the Chicago Housing Authority due to a failed drug test. His life as
a professional was over. By the time of his arrest, his habit had reached a level of spending $20 every other
day on crack. (PSI at 23). Consistent with his escalating drug use and lack of employment, Mr. Bradshaw’s
contacts with the criminal justice system increased. Following Mr. Bradshaw’s severe dependancy on crack,
he amassed seven convictions from 1997 through May of 2000. All of this conduct either was influenced by
or involved drugs and alcohol. Someone who had once been a successful college graduate with honors, had
been reduced to working as a carnival ride operator for an amusement company. Having become an addict
who could not function without drugs, Mr. Bradshaw committed the instant offense. (PSI at 24).
B. Sam Bradshaw’s Life Following His Release On Bond In This Case.
2
References to the Presentence Investigation Report will be cited as “PSI” followed by
the page number.
Since his release on bond, Sam Bradshaw has lived up to each and every requirement of his release
conditions and has exceeded all expectations regarding his recovery. He successfully completed an in-patient
drug treatment program at Lake Villa Gateway. Mr. Bradshaw’s counselor at Gateway, Peter Richardsen,
observed that Sam “was a serious and focused individual”, who productively participated in his treatment,
interacted appropriately with his peers, and appeared “genuinely interested” in developing skills for a
recovering lifestyle. (PSI at 23). Richardsen indicated that while in treatment “Sam made a firm commitment
to change his life for the better.” (Sent. Rep. 2). Asked about Mr. Bradshaw’s prognosis for future success,
Richardsen responded that Mr. Bradshaw would do well if he stayed with the program because of his
education and work history. (Id).
While at Lake Villa Gateway, Mr. Bradshaw bonded with another positive influence who has
contributed to turning Mr. Bradshaw’s life around. He met Reverend Frank Marcus, an Assemblies of God
minister who, about three years ago, took the responsibility of the Calvary Christian Center’s ministry to
people who are suffering from the disease of addiction. The Calvary Christian Center is the ministry arm to
Gateway Foundation in Lake Villa. (Sent. Rep. 2). It was in this capacity that Rev. Marcus met Mr.
Bradshaw and ministered to him at Lake Villa. Reverend Marcus noted that after a few weeks in treatment he
could tell that Mr. Bradshaw had surrendered to a higher power. (Id). Even after the “crisis stage” had
passed, the Reverend found that Mr. Bradshaw retained his commitment and that he had a “servant’s heart”
in his desire to minister to others in order to help them transform their lives through the program that had
transformed him. (Id).
Since this summer, Mr. Bradshaw’s bond conditions have been expanded to allow him to travel to
Kenosha, Wisconsin, to worship at Reverend Marcus’s Life Community Church Of Kenosha. Reverend
Marcus has appeared at court proceedings to show his support for Mr. Bradshaw. Reverend Marcus advised
that in all his years of ministry, he has written only one other letter of support to a court for an individual.
(See attached letter of Reverend Frank A. Marcus; Sent. Rep. 3). Lastly, Reverend Marcus emphasized that
in his estimation, “Sam is a miracle”. (Sent. Rep. 3).
After Lake Villa Gateway, Mr. Bradshaw participated in out-patient drug treatment at a group
recovery home in Waukegan, Illinois, called Bridge House. John Smith, a counselor there who has worked
in addictions counseling for nineteen years, stated that Mr. Bradshaw was “trustworthy, genuine and service
oriented” and that when he left Bridge House he was “completely committed to his recovery.” (Sent. Rep.
3). Mr. Smith placed Mr. Bradshaw in the top five percent of the thousands of people with addictions he had
met in his years of counseling in terms of Mr. Bradshaw’s commitment, his determination to stay away from
drugs, his willingness to work with counselors and peers and most importantly, his ability to surround
himself with positive people. (Id)
Mr. Smith noted that the most critical factor in long term sobriety is the ability to surround yourself
with positive individuals whose only interest was providing a support network. “Having positive
relationships with other people, being real and honest, that’s what keeps a person from relapse.” (Id)
Further reflecting Mr. Bradshaw’s commitment to long term sobriety is his relationship with Neil
Jackson. Mr. Jackson is an employee of Union Pacific Railroad and is Sam’s sponsor at Narcotics
Anonymous. (NA). He is also a member of NA’s committee called Hospitals and Institutions. They met in
the fall of 2001 at Bridge House where Mr. Jackson was assisting in running an NA meeting. (Sent. Rep. 3).
Mr. Jackson believes Sam possesses both honesty and humility which are important aspects of
recovery. (Id). Mr. Bradshaw has stayed actively involved with NA, another important factor in recovery.
Mr. Jackson sees Mr. Bradshaw on a weekly basis at NA meetings at Gateway’s Lake Villa facility. (Sent.
Rep. 4). Mr. Bradshaw also helps Mr. Jackson conduct NA meetings at the North Chicago Veteran’s
Administration Hospital. (Id). Mr. Jackson notes that Mr. Bradshaw is excited about his recovery and
accepts every opportunity to help others in recovery as evidenced by his work at the North Chicago VA. (Id).
Mr. Jackson sees Mr. Bradshaw as a “humble soul” who is “living the program, not just talking it.” (Id).
Following his successful completion of out-patient treatment at Bridge House, Mr. Bradshaw moved
to Oxford House, another group recovery home in Waukegan. Victor Leonard, a counselor at Gateway
Foundation, who met Mr. Bradshaw through his participation at Oxford House, describes Mr. Bradshaw as
an outstanding person whose attitude, performance and participation at Oxford House are an inspiration to
everyone there. (Id; See attached letter of Victor Leonard). Mr. Leonard noted that at Oxford House, Mr.
Bradshaw was the house treasurer and has currently risen to the position of house president. (Id).
Jim Tibensky met with Sam Bradshaw several times during the course of this case. Mr. Tibensky,
who was a Drug and Alcohol specialist at the Pretrial Services Office for several years, was impressed with
Mr. Bradshaw’s ability to “identify his drug triggers”, that is the things that may cause a relapse, and what
he needed to do in order to maintain his sobriety. (Id). Mr. Tibensky believes many indications exist
reflecting Mr. Bradshaw’s potential for successful rehabilitation. Specifically, Mr. Bradshaw’s willingness to
accept responsibility for the harm he has caused, his renewed relationship with God, and that Mr. Bradshaw
has intentionally humbled himself by accepting employment as a janitor at Burger King which evidences his
decision to keep recovery his first priority. (Id).
Through all of his years in the criminal justice system, Mr. Tibensky believes Mr. Bradshaw is only
one of less than a handful of people he has encountered who have made such uncommon, truly extraordinary
progress from the moment treatment began. (Id). Mr. Tibensky noted that while we hope all who are
provided treatment will improve their lives, the fact remains that it only happens but a “fraction of the time”.
(Sent. Rep. 5). During his nine years as a treatment specialist, Mr. Tibensky has seen only one other
individual make the dramatic changes Mr. Bradshaw has made. (Id). Five years later that person has not
faltered in her progress, not used drugs again and has rebuilt her life. Mr. Tibensky believes Mr. Bradshaw
is on that same road. (Id)
II.
SENTENCING GUIDELINE CALCULATIONS
Under the Sentencing Guidelines, Sam Bradshaw’s adjusted offense level is 21. (PSI at 7-8). He has a
Category IV criminal history. (PSI at 15). As a result, his applicable guideline range is 57-71 months
incarceration. (PSI at 28).
III.
MOTION FOR DOWNWARD DEPARTURE
Under 18 U.S.C. § 3553(b), a sentencing court may impose a sentence outside the guideline range
where “there exists an aggravating or mitigating circumstance of a kind, or a degree, not adequately taken
into consideration by the Sentencing Commission.” The Supreme Court reiterated that sentencing courts have
vast discretion to depart from the guideline range in cases which fall outside the “heartland” of those
considered by the Sentencing Commission in drafting the guideline range for a particular offense. Koon v.
United States, 518 U.S. 81 (1996).
A.
A Downward departure is warranted in this case on the basis of Mr. Bradshaw’s exceptional
post-offense rehabilitation.
The Guidelines account for a defendant’s good and lawful conduct between charging and sentencing.
U.S.S.G. § 3E1.1 comment (n.1(g)). However, where a defendant’s conduct or rehabilitative efforts are
“extraordinary,” a court may consider those efforts in sentencing below the guideline range. See e.g., United
States v. Rudolph, 190 F.3d 720 (6th Cir. 1999); United States v. Bryson, 163 F.3d 742, 747 (2nd Cir. 1998);
United States v. Whitaker, 152 F.3d 1238 (10th Cir. 1998).3
Mr. Bradshaw submits that the progress and efforts he has made in overcoming his drug addiction are
extraordinary. Although many defendants are provided the opportunity to obtain drug treatment while on
pretrial release, unfortunately, it is rare to see the improvement and growth exhibited by Sam Bradshaw. As
noted by mitigation specialist Jim Tibensky, only “once in a great while” is a person arrested at the right
moment in their life when they are open to make the difficult, sweeping changes in their lives that complete
recovery from addiction entails. (Sent. Rep. 5).
Sam Bradshaw, realizing the depths that he had sunk to, seized the opportunity he had been provided
and devoted himself to rehabilitation and to carrying the message of hope and recovery to others as well. He
dealt first with his addiction, which is still his main priority, but also either consciously or unconsciously,
used his “servant’s heart” to try to better the lives of those around him. He assumed a position of leadership
in his current group home becoming its treasurer, then its current president. More significantly, he has
devoted himself to working outside the recovery home by helping lead NA meetings at the North Chicago
V.A. Hospital and at his former group recovery home, Bridge House. He has been an example of someone
who is not committed to repairing his own life, but along the way helping others find the path that lifted him
from despair and crisis.
This is not an ordinary case of an individual doing well while receiving drug treatment as a result of
3
The Seventh Circuit at one time held that post-offense rehabilitation cannot be considered a
basis for downward departure. See e.g. United States v. Bruder, 945 F.2d 167 (7th Cir. 1990).
However, the courts in those cases relied on the pre-Koon reasoning that rehabilitation could never be
considered for a downward departure because it was one consideration whether the defendant had
accepted responsibility under § 3E1.1. This analysis was rejected by the Supreme Court in Koon. See
Rudolph, 190 F.3d at 725-26. Therefore, under controlling Supreme Court precedent, the Seventh
Circuit’s prior pronouncements on this issue are incorrect.
their criminal proceeding. The depth of Mr. Bradshaw’s commitment to rehabilitation is demonstrated by the
impact he has had with those who have participated in his treatment during the past year and a half.
Reverend Marcus, who has ministered to addicts for years, wrote the Court in this case, something he has
done only once before, because he was so touched by the sincerity of Sam Bradshaw’s efforts to help not only
himself, but others with the same affliction. (Sent. Rep. 3). John Smith, a counselor at Bridge House, also
noted that Sam, after leaving that home, returned to help run and participate in meetings. (Id; See attached
letter of John Smith CADC). Mr. Smith stated that Sam was an excellent participant “in all facets of the
program”, and that he invested himself by taking risks in group and individual sessions. (Id).
Sam Bradshaw’s post-offense rehabilitation is genuine and truly unique in its completeness. He has
engaged himself in a manner that has not only benefitted him but others around him. His conduct has been
extraordinary and of a type that is rarely seen in the criminal setting. We ask the Court to take note of these
efforts and their far-reaching impact in considering this request to depart from the applicable guideline range.
On this basis, a departure is warranted under §5K2.0 and 18 U.S.C. §3553.
B.
Mr. Bradshaw’s Risk Of Recidivism Is Overstated By His Criminal
History Category IV.
Sam Bradshaw’s applicable guideline range of 57-71 months is based on his Category IV criminal
history and an offense level of 21. (PSI at 7-8, 15, 28). In determining a defendant’s criminal history category
and appropriate sentencing guideline range, one of the considerations in formulating the guidelines was
protecting the public from further crimes of the defendant while assessing the likelihood of recidivism and
future criminal behavior. See Introductory Commentary, Ch. 4 Part A- CRIMINAL HISTORY. It would
normally be expected that a person with Sam Bradshaw’s criminal history would be a high risk of re-offending.
However, the extent of Mr. Bradshaw’s rehabilitation and the clear link between his criminal history and his
addiction to drugs and alcohol suggest that his risk of recidivism is quite low. The amount of time Sam
Bradshaw has maintained sobriety together with the support network he has established to assist him in
remaining sober demonstrate that he does not pose the same risk of re-offending as others who are in his
criminal history category.
Section 5K2.0 allows a sentencing court to impose a sentence outside the applicable guideline range if
the court finds “that there exists a[n]... mitigating circumstance of a kind, or to a degree, not adequately taken
into consideration... in formulating the guidelines that should result in a sentence different from that described.”
In furtherance of § 5K2.0, the guidelines encourage courts to depart downward from the guideline range when
the defendant’s criminal history category significantly overstates the seriousness of his prior conduct.
If reliable information indicates that the criminal history category does not
adequately reflect the seriousness of the defendant's past criminal conduct or the
likelihood that the defendant will commit other crimes, the court may consider
imposing a sentence departing from the otherwise applicable guideline range.
***
There may be cases where the court concludes that a defendant's criminal history
category significantly over-represents the seriousness of a defendant's criminal
history or the likelihood that the defendant will commit further crimes. . . The
court may conclude that the defendant's criminal history was significantly less
serious than that of most defendants in the same criminal history category
(Category II), and therefore consider a downward departure from the guidelines.
§ 4A1.3 (Policy Statement). See United States v. Abbott, 30 F.3d 71, 72-73 (7th Cir. 1994).
A departure is warranted in Mr. Bradshaw’s case as his risk of recidivism is far lower
than that of the typical Category IV offender. His successful rehabilitation and efforts in the
community to help others are not consistent with an individual at risk of committing additional
offenses. Further, he has been employed for several months at the same job, further evidencing
his reliability, and has the ability to seek more lucrative employment based on his past
educational and employment experience. Additionally, his wide-ranging support network
provides Sam with an alternative to drugs or crime during those times that life becomes more
challenging.
A review of his criminal history reflects that virtually all of his criminal conduct occurred
following his dependance on controlled substances, notably crack cocaine, and alcohol. Eight of
his nine criminal history points stem from conduct occurring since 1997. It is crystal clear that
Sam Bradshaw’s drug and alcohol dependancy were tied to his commission of criminal conduct.
Take away the drugs and alcohol and what is left is an intelligent, caring, highly motivated
college graduate who is capable of re-capturing the promise he exhibited when he escaped a
family and community of crime and instability.
Nor do the guidelines ignore the relationship between drug dependance and criminality.
Application Note 6 of §5C1.1 states:
There may be cases in which a departure from
the guidelines by substitution of a longer period of
community confinement than otherwise authorized
for an equivalent number of months of imprisonment
is warranted to accomplish a specific treatment purpose
(e.g. substitution of twelve months in an approved
residential drug treatment program for twelve months
of imprisonment). See U.S.S.G. §5C1.1 App. N. 6
Application note 6 continues stating that this type of substitution of sentence should be
considered only in cases where the defendant’s criminality is related to the treatment problem to
be addressed and where there is a reasonable likelihood that successful completion of the
treatment program will eliminate that problem. Unquestionably, the guidelines acknowledge that
alternatives to the application of the guidelines exist and should be considered where a
defendant’s criminality is linked to a treatment problem.
The guidelines recognition of a link between criminality and drug addiction strongly
suggests that a departure based on overstated risk of recidivism is appropriate where the
defendant’s recidivism risk is significantly reduced because of his successful rehabilitation from
the problem that was at the core of the criminal conduct. There is no question that Mr.
Bradshaw’s Category IV criminal history was linked to his substance abuse problem. The risk of
recidivism, suggested by his criminal history category, is overstated as the problems that
propelled him into that criminal history have been addressed.
Just as §5C1.1 allows for drug treatment rather than incarceration where there is a link
between criminality and a treatment problem, and there is a reasonable likelihood that successful
completion of the program will eliminate the problem, it stands to reason that §§5K2.0 and
4A1.3 allow a departure where the defendant has successfully addressed the problem that was at
the root of the criminal conduct thereby resulting in a criminal history that overstates the
recidivism risk. Considering the nature and the circumstances of his prior convictions, and his
extraordinary efforts at rehabilitation, Mr. Bradshaw submits that criminal history Category IV
significantly overstates the seriousness of his prior conduct and the likelihood that he will reoffend. Therefore, a downward departure is warranted on this basis.
CONCLUSION
Throughout this motion, Mr. Bradshaw has attempted to show that the goals of
deterrence and protection of the public long ago ceased to be a concern in his case. As stated
repeatedly herein, he has made a total break from the past that led to his current circumstances.
He has also clearly shown his rehabilitation and respect for the law, both of which are products
of his personal choice and strength of character. Thus, the sentence imposed in this case need
not account for the risk presumed for an individual with his criminal history category. Also,
his sentence should reflect that his post-offense rehabilitative efforts are extraordinary and
demonstrate a person who has changed his life in a manner that demonstrates that prolonged
incarceration serves no purpose other than punishment. Mr. Bradshaw respectfully requests
that this Court depart downward from the guideline range and impose a sentence that is
consistent with the goals of sentencing taking into consideration the atypical sentencing factors
presented by Mr. Bradshaw’s rehabilitation.
Mr. Bradshaw is not requesting that this Court impose a sentence other than incarceration
in this case. What we request is a sentence that would punish Mr. Bradshaw for his offense but
that would take into consideration his considerable efforts at rehabilitation. A sentence of 57-71
months does not take into account Mr. Bradshaw’s extraordinary efforts and success in
rehabilitation nor does it account for his lessened risk of recidivism. As a result, Mr. Bradshaw
asks the Court to grant his request for downward departure and impose a sentence that allows
him an opportunity to expand on his successes of the last fifteen months and allows him to
continue to be a positive influence for others in the community.
Respectfully submitted,
FEDERAL DEFENDER PROGRAM
Terence F. MacCarthy,
Executive Director
BY:____________________________
Robert D. Seeder
ROBERT D. SEEDER
FEDERAL DEFENDER PROGRAM
55 E. Monroe Street, Suite 2800
Chicago, IL 60603
(312) 621-8341
MITIGATION REPORT
June 30, 2008
Honorable Christopher Gleason
United States District Court Judge
Re: Giles Wilson
04CR 311-1
Dear Judge Gleason:
The story of Giles’ life could be staged as a Greek tragedy. The contrasts between the
good things that he has done in his life, the good things he hopes to do with the rest of his
life, and the harm that he has caused in the past are certainly dramatic. If there is a theme
to be sung by the chorus in this drama, it is that Giles has always wanted to be someone
who can be relied upon to help others. A refrain in that chorus is that Giles carries an
enormous amount of guilt for the problems he has caused his family, his community, and
himself. He is now learning how to channel his regrets into positive action. There is
every reason to believe that he has begun a transformation that will keep him on the
positive, responsible path he had been on in the past but from which he had always fallen
off because of his drug and alcohol use.
Childhood
Giles was born in California. His father was incarcerated in California at the time, so,
when Giles was less than two years old, his mother, Lynn, moved the family to Illinois.
2
They stayed at the home of her brother, Jules Venable, and his wife Donna. Jules and
Donna Venable are, to this day, two of the most important people in Giles’ life.
Giles’ father is Giles Wilson, Senior. He is sixty-three years old. When Giles last had
contact with him, he was living in Taos, New Mexico working as a cook.
Giles, Senior came to live with the family when he got out of prison in California. Giles’
full siblings, Patricia, now thirty-one years old, and Ronnie, who died in December of
2007 at the age of twenty-six, were born during this short time while the family was
intact. Giles, Senior worked in the laundry at the Hines Veteran’s Administration
Hospital. The family lived in Maywood together for three years.
Giles says, and his sister Patricia confirms, that his father was an alcoholic. He would
start drinking as soon as he got home from work. “He was a Jekyll-Hyde guy,” Giles
says. “Alcohol made him be in a rage. The little ones were always afraid of him. I never
saw him sober, but my father is cool if he’s not your father.”
Giles’ mother was named Lynn Venable Wilson. She died in 1989 at the age of thirtyfour.
When the family was together, life was reasonably good for everyone. It changed when
Giles was about eight or nine years old. His mother was severely injured in an
automobile accident. The children stayed with their father until she got out of the
hospital. Not long after his mother’s release from the hospital, Giles’ parents separated.
The family moved to Oak Park without their father, living in a building owned by Giles’
maternal grandmother.
A custody battle between the parents ensued after this, so Giles and his siblings remained
with their grandmother in Oak Park.
Giles, Senior came by one day ostensibly to take the children to a park. But instead of
bringing them back, he took them to his own home. Giles memorized the telephone
number at his father’s home and then ran away back to his grandmother. She called the
police, who traced phone number. The children were returned to their grandmother.
Giles said “I felt like a hero because I was smart enough to remember the phone number.”
While they were living with their grandmother, Giles once stayed out playing ball and did
not come home until late in the evening. This apparently caused their grandmother to
have a nervous breakdown. (Giles, his sister Patricia and his uncle Jules all told me about
this incident.) The children were placed into the custody of the Illinois Department of
3
Children and Family Services. This was the first of many times in Giles’ young life
where he felt strong guilt for what he had done to his family. He felt that his family was
split up and taken by DCFS because he was causing his grandmother so much stress. “I
do remember that one day, I went out to play and I did not return until much later that
day. Well, my grandmother was so worried that something had happened to me that she
had a nervous breakdown. As a result, we were taken out of her custody and turned over
to the custody of DCFS to be placed in foster homes. We were split up. My brother and
sister were sent to one foster home. I was sent to another.” “I felt really bad because I
thought this whole foster home thing was my fault. I felt responsible. I was.”
Giles made some money by carrying groceries for patrons of the Jewel Foods store across
the street from his foster home. This is his earliest memory of working to help his family.
He loved it. He bought candy and then walked about four miles to where his brother and
sister were living to give them the candy. Giles ran away from his foster family to see his
siblings so often that their foster mother, a Mrs. Snow, eventually took Giles in as well.
The custody determination was eventually made in favor of Giles’ mother. The children
went to live with her in an apartment in Oak Park. It was during this time that Giles
caused his brother to lose the sight in one of his eyes. Giles was pretending to be a
martial arts master and accidently hit Ronnie in the eye. Giles wrote to me, in the time
before his brother died: “To this day he is still not able to see out of that eye, and it was
all my fault. It doesn’t matter how guilty I feel about it or what I try to do, the bottom line
is that my little brother lost his eye because of me. It was my fault and I cannot fix it.”
More regret and guilt for Giles.
Lynn, Giles’ mother, struggled with cocaine and alcohol use for much of her adult life.
Giles believes that her death, officially from pneumonia, was caused by her cocaine use.
Lynn attempted suicide many times. Giles says there were seven serious suicide efforts
that he knows about. One of his most vivid memories of his mother is of her lying in the
hospital after one suicide attempt. She had tubes in her nose and looked horrible.
Another time she took a lot of sleeping pills and handed a note to Giles and his sister
saying “After I die, give this note to Uncle Jules.” Patricia, Giles’ sister, says that Giles
was a “happy, smart kid. That all changed the day our mother went to sleep and didn’t
wake up for three days. At the time we didn’t know that it was a suicide attempt. We just
knew that, after that, we had to take care of each other.” Giles became the protector and
the male leader at an age when he should have only been a child.
Eventually Lynn moved with her children to the north side of Chicago. Giles was in the
seventh grade. Jules Venable, Giles’ uncle, says that Giles’ problems started when his
4
mother moved with him and his siblings to Chicago. Jules is Giles’ mother’s brother.
Giles’ father is African-American. His mother was white. Jules’s wife, Donna, is
African-American. The extended family had no tradition whatever of racism. Giles
writes of living in Chicago:
I was forced to try and fit in when I just did not. I was not white nor Hispanic and
I was not in any gang. I had no friends but I had automatic enemies because I was
mixed with black. After a few fights, I witnessed my mother breakdown. Her
dilemma was much worse than mine. She was white and would not be accepted
in a black neighborhood. We were black and weren’t being accepted in the white
and Hispanic neighborhood. She was a single parent and could no longer afford
to live in Oak Park. She was doing the best she could with what she had and we
were still suffering. She was going through just as much as we were, if not more.
We all felt helpless.
It was obvious there were problems, but I would not open up, especially when one
day my mother discovered the words “NIGGER GO HOME” were written on my
bedroom window from the outside. It was written in dog feces. We ended up
moving once again.
This move was to a more racially a mixed neighborhood in Chicago. They, again, lived
across the street from a Jewel store. Again Giles earned money by helping people with
their groceries. His mother was struggling financially, so Giles helped by using his
earnings to buy food items at the Jewel.
Patricia said “Giles was our Big Brother. He protected us. He would walk us to and from
school. He fed us. By eighth grade he was making dinner, making sure we were in bed
on time, getting us up in the morning to go to school. Nobody told him to do it. He just
did it.”
Then they moved again, this time to be with their father while their mother went on her
own to find a job and get settled. Giles, Senior, now had a new “wife” who had two
children by him and two from previous relationship and had custody of two of her sister’s
children as well.
Giles’ mother applied for disability income and was denied. Finally, after appeals, her
disability income was approved. Lynn got a lump-sum payment for the money she would
have got from the time she first applied for the disability income. She went to find an
apartment in Oak Park so that she could bring the family back together again. Giles says
“One day we were at my father’s house waiting for my mother to come and pick us up to
go shopping as she promised she would. We were posted at the window waiting for the
5
car to pull up. She never came. We were enraged. We could not get in contact with her.
There was no answer at the hotel where she was living. We thought she had lied to us.
Not only did she have us at my father’s house way too long to find an apartment but now
she didn’t come pick us up to go shopping. We really felt abandoned, and I was
extremely angry at her for that. Late that night the phone rang, and a short time later my
father called us to his room and told us that our mother was dead.” “This was a definite
turning point in my life. I was a complete mess. At the funeral, I couldn’t even face the
casket. My family tried to make me go but I just couldn’t do it. I couldn’t see her like
that. From that point on, I consumed whatever mood-altering substance I could get my
hands on at just about every chance I got. I was only 14 years old and I was full of
alcohol, drugs, and hatred for myself. Once again, I felt like it was my fault. Maybe if I
wasn’t so mad about her not coming to get us?”
After their mother died, Giles and his siblings stayed with their father and Anne Greene.
Anne may have been his wife or only his girlfriend, Giles does not know if they were
married. Giles’ stepmother did not appreciate Giles and his siblings being there. Patricia,
Giles’ sister, said that Anne, their stepmother, would do everything she could to keep
them estranged from their father’s affection. Giles was often beaten by their father for
things such as missing curfew. Their stepmother would join in the beatings. Ronnie and
Patricia, Giles’ siblings were also beaten. After one particularly bad beating, Giles called
the Venables, his aunt and uncle, and asked them to take him in again. Jules told Giles
that he should file a police report on the beating, which Giles did. Jules told me: “After
my sister died, I told Giles’ father that we would take all the children. But Giles, Senior,
refused and kept the children with him. One day Giles’ father and the father’s girlfriend
beat Giles with a belt. Giles ran to us. I took Giles to the police station and had him file a
report. They went to court three or four times. But eventually I told Giles to drop the
case because I was concerned that Giles would feel bad if his father got sent back to
prison. Giles already had enough guilt about things. He didn’t need more.”
Although Giles continued to live with his aunt and uncle after that, his siblings stayed
with their father. Patricia says “He never lived there again. While we were separated,
Giles would call and meet us in the alley to give us money and clothes. He risked being
caught by our father just to take care of us.” Eventually she and Ronnie ran away from
their father’s home and went to live with a former girlfriend of their father’s. Giles then
arranged for all of the siblings to live with their Aunt Bertha in St. Louis, where the
children had often spent their summers. Patricia lived with Eartha until she graduated
from high school. For a time they lived in Oklahoma, but Patricia graduated from a
school in St. Louis. She now works as an admissions officer for Kaplan University, the
on-line school.
6
In March of 1990, when he was sixteen years old, Giles was beaten by gang members.
They had hoped to shoot him, but their pistol jammed, so they beat him instead. He was
taken from medical care into New Beginnings for substance abuse treatment at his
father’s request. New Beginnings kept him for eight days and then transferred him to
Chicago Lakeshore Hospital for further therapy when the insurance benefits ran out. The
records from Chicago Lakeshore indicate that Giles was using marijuana and alcohol
almost daily and had used cocaine as well.
He was in Lakeshore Hospital for six weeks. The counseling note of May 22, 1990
confirms Giles’ description of his father: “Giles’ father showed up after visiting hours on
Sunday afternoon in the company of a lady. Father was very drunk and his alcoholic
breath was very apparent & noticeable from 3 feet away. Father was asked to return to
lobby where supervisor escorted him out.” Other notes mention stressors in Giles’ life as
“father abusive of alcohol” and “father disengaged from patient.” It is noted, on the other
hand, that Giles’ Uncle Jules is “interested and invested in patient.” 1 Giles’ aftercare plan
included long-term residential treatment at the Gateway Foundation program for youth in
Lake Villa, Illinois. The plan was not followed.
In August of 1990 Giles got a call from his father. His father was turning himself into
custody because he had been charged with killing someone. In December Giles joined his
father in the same division at Cook County Jail.
Adulthood
Giles’ life as an adult has been a series of triumphs and tragedies. He has been highly
successful in employment and in school. He has a wonderful family. He has spent much
of his adult life in custody. He has been addicted to alcohol and drugs.
I met with Jules and Donna Venable at their home in Oak Park. This is the home where
Giles and his sister and, at times, his mother, lived while Giles was growing up. It was
also his refuge when he had nowhere else to go.
Jules owned a grocery store called Bluebird Foods at Adams and Cicero on the west side
of Chicago. Giles started working there at the age of fourteen, doing everything that
needed doing. He learned to cut meat and got to be quite good at it. He was especially
skilled at making customers happy. Jules says that “The customers loved Giles. He was
smart and kept you laughing.” Jules told me that customers often asked to have Giles
1
Chicago Lakeshore Hospital counseling notes of March 20, 1990
7
wait on them. The death of Giles’ brother, Ronnie, provided another example of the
impact Giles had on customers of his uncle’s store. The funeral director who presided
over Ronnie’s funeral had been a customer of the Venable’s grocery shop when Giles
worked there as a youngster. When they learned that Giles was in custody and unable to
attend the funeral, the funeral home staff offered to take Ronnie’s body to the garage area
of the Dirksen Courthouse at no cost if Giles could be brought there for a viewing. It was
arranged and Giles got to see his brother for the last time. “That’s the kind of
relationships Giles helped to build in that grocery shop,” his sister told me.
Jules had a leg amputated after it was crushed in an accident and did not heal well due to
the complications of his diabetes. Jules told me that Giles used to change the dressings
after his surgery and even helped the ambulance attendants carry Jules up the stairs to
their second floor apartment. “Giles will do anything he can to help.”
One of the jobs Giles had was as a salesman for Marriott Vacation Club properties. He
was one of their most outstanding salesmen. When I visited the Venables, they showed
me a large granite obelisk that Giles had won as the best salesman in his office. It is
inscribed “In recognition of outstanding sales achievement.” His sister, Patricia, told me
that along with the trophy, Giles won a free vacation. He gave that vacation to his Uncle
Jules and Aunt Donna. Giles lost the job when Marriott moved the operation to another
state.
Giles’ Children
On March 3, 1992, Giles’ first child, Donald, was born. Giles was in Cook County Jail
and only eighteen years old at the time. Through all of his incarcerations, Giles has
diligently kept in touch with Donald. Giles started associating with the Gangster
Disciples street gang when he was a teen. He tells a powerful story of why he dropped
out of the gang:
In 1998 I was talking to Donald on the phone one day while I was incarcerated
and he said that I should stop being a GD. I was amazed because I had no idea
that he knew anything about GD’s or any gangs for that matter. Here was my son
at the age of seven or eight telling me to “stop being a GD.” The bible says that
“out of the mouths of babes comes the truth.” Very shortly thereafter, I officially
cut my ties with the GD organization. I was utterly ashamed when my son made
that statement and there was basically nothing I could say to dispute it. I took my
son’s advice.
Donald is now a student at Oak Park River Forest High School. He has lived with Giles’
8
sister, Patricia, and has spent a lot of time with Giles’ Uncle Jules and Aunt Donna. They
describe Donald as a fine young man who is doing very well. At one time when Giles
was not in custody, Donald transferred from a school in Chicago to one in Oak Park. He
was in the fifth grade at the time. The Oak Park school wanted to place Donald in a
special education class because his performance evaluation showed that he was behind his
peers. Giles convinced the teacher, a Ms. Roth, that Donald should be left in a
mainstream class because Giles would tutor him. She agreed and Donald caught up to his
peers by the end of the term.
Donald is sixteen years old. As Giles knows only too well, this is an age when boys start
to spread their wings in directions that no necessarily healthy. Giles is terribly concerned
about Donald and knows that he needs to be with him as soon as possible to provide the
careful guidance that Giles is now capable of giving.
Giles had a relationship with a woman named Nellie. On July 20, 2002, she gave birth to
a son named Jacob Wilson. Giles says that the paternity of Jacob is in doubt, but he
accepts Jacob as his son and did his best to be a father to him. Unfortunately, Nellie was
arrested not very long after Giles was arrested on the current charge. Once Nellie
resolved her criminal matter, she decided to cut Jacob off from Giles, who has not seen
Jacob for almost three years now. Patricia, Giles’ sister, told me that Giles decided it was
his duty to give his name to Jacob and to raise him as his son. It was his duty because he
was able to help, therefore, he must help. “Giles took care of him like it was his own son.
Jacob calls him ‘dad.’ Jacob still comes to see me and to spend the night at my house.
He is a nephew.” “He (Giles) is a really caring father. We went through a lot as children.
We want our children to have it better than we had it. The things we were exposed to, it
had to make a difference in the decisions Giles made early on. The average person would
not be able to function at all with that background.”
Giles has kept his contact with Jacob to a minimum since his arrest. Giles is concerned
that re-establishing a relationship with Jacob carries a risk of disillusionment for Jacob if
Giles is sentenced to a long term of custody which will again break their bond. He also is
concerned that Nellie may get married. Giles does not want Jacob to “have two dads.”
This happened with Donald when Giles was incarcerated. Geri, Donald’s mother, had a
close relationship with another man. That man was killed in 2003. It was very hard on
Donald, who had been raised for a large part of his life by that man.
Moorish Science Temple
Giles took his son’s advice to heart in 1998 by cutting his ties to the Gangster Disciples.
9
Giles made a commitment at that same time to become a member of the Moorish Science
Temple. He had been in custody with a leader of the Temple and felt that following its
teachings would help to better his life. Men in the Moorish Sciences append either “El,”
which means “Creator,” or “Bey,” which means “Governor,” to their names to proclaim
their connection to a time when the spiritual, cultural, political and legal aspects of
African’s lives was in their own hands. One of the mottos of the Moorish Science
Temple is “Uplifting Fallen Humanity by Learning to Love Instead of Hate.” More
information is on their website at: moorishsciencetempleofamericainc.com.
Education
Giles earned his General Equivalency Degree and a number of certificates while in the
custody of the Illinois Department of Corrections:
Advanced Toastmaster Bronze Award - Toastmasters International 4/13/99
Associate in Liberal Studies Degree - Black Hawk College 12/99
Bachelor of General Studies Degree With Honors - Roosevelt University
1/23/00
Food Service Certificate - Black Hawk College 4/00
Giles earned a Bachelor’s degree with honors from Roosevelt University on January 23,
2000 and was enrolled in a Master’s program at the time of his arrest for this offense.
Since he has been in federal custody, Giles has made a commitment to change his life
completely. Education is one of the few positive pursuits available to a pre-trial detainee.
Giles has already earned an impressive number of certificates at the Metropolitan
Correctional Center. He has also renewed his dedication to serving others by teaching a
number of classes at the MCC as well as leading Moorish Science services there. This is
the list of Giles’ educational activities at the MCC at the time of this report:
Certificate of Achievement - Legal Research Class 12/11/06
Verification of completing the self-study workbook “How to Get Sober and Stay
Sober” - Bureau of Prisons Psychology Data System 1/22/07
Verification of completing self-study materials “Denial,” “Working Through
Denial - The Key to Recovery,” and “The Phases and Warning Signs of Relapse” Bureau of Prisons Psychology Data System 2/7/07 (note of Dr. Daniel
Bernstein: “Inmate Wilson identified his personal warning signs as
believing his addiction is cured, periods of confusion in his life, having an
‘I don’t care’ attitude, attempts to engage in controlled drinking, and poor
ability to maintain involvement in ‘normal’ life activities.”)
10
Verification of reading the book Addictive Thinking, viewing the video :Set Up
For Relapse” and completing the workbook “Brief Therapy for Relapse
Prevention: Warning Sign Identification and Management Workbook” Bureau of Prisons Psychology Data System 3/13/07 (note of Dr. Daniel
Bernstein: “We discussed his reaction to the book. Inmate discussed that
he can see how altered perceptions in recovery could lead to a relapse. He
can now see how minimization could result in making poor decisions
about drinking despite the “knowledge” that negative consequences occur
from his drinking.”)
Verification of viewing the video “Recovery, A Developmental Model, Part 1" Bureau of Prisons Psychology Data System (note of Dr. Daniel Bernstein
4/9/07)
Certificate of Achievement - Volunteer Services for the Recreation Department,
Program Coordinator, 25 hours 4/29/07
Certificate of Achievement - ACE Instructor 5/16/07
Verification of viewing videos “Recovery, A Developmental Model, Parts I and
II” - Bureau of Prisons Psychology Data System (note of Dr. Daniel
Bernstein 5/21/07)
Verification of reading the book Of Course You Are Angry - A Guide to Dealing
With the Emotions of Chemical Dependence - Bureau of Prisons
Psychology Data System 3/29/07 (note of Psychologist Daniel
Bernstein: “He wrote a paragraph about the book, indicating that the step
involving himself making a moral inventory of himself was very
important. He noted that he needs to notate all of his resentments and then
analyze these resentments.”)
Certificate of Achievement - Self-study course Jesus is Lord, Addiction is Not
Wisconsin Evangelical Lutheran Synod, Milwaukee 10/9/07
Certificate of Participation - Parenting Class 11/13/07
Certificate of Participation - Instructor’s Training 12/20/07
Verification of viewing the video “The Recovery Process Part I and Part II” Bureau of Prisons Psychology Data System (note of Dr. Daniel Bernstein
12/25/07: “The presentation gave inmate Wilson an overview of what
happens when people successfully recover.”)
Certificate of Achievement - Men Under Construction Counseling Group, two
hours 1/7/08
Certificate of Achievement - Victim Impact Property Offense Counseling Group,
2 hours 1/7/08
Certificate of Achievement - Parenting Skills Counseling Group, 20 hours,
1/14/08
Verification of completion of the self-study course “My Personal Journal,
addressing personal issues” - Bureau of Prisons Psychology Data System
(note of Dr. Daniel Bernstein 1/24/08)
Verification of completing The Coping Skills Journal as part of the self-study
11
work - Bureau of Prisons Psychology Data System (note of Dr. Daniel
Bernstein 2/8/08: “The self-study materials addressed should be helpful
when he engages in formal treatment activities.”)
Certificate of Participation - Legal Research Instructor 2/27/08
Certificate of Participation - Introduction to Entrepreneurship 2/27/08
Certificate of Appreciation - For Volunteer Services “Completing over six months
in Religious Department for volunteering in conducting Moorish Science
Services 4/3/07
Verification of participation in AA meetings from October 2006 to present.
Bureau of Prisons Psychology Data System (note of Dr. Daniel Bernstein
4/5/08: Giles Wilson has consistently attended the weekly AA meetings
between October 2006 and the present.”)
Certificate of Completion - Victim Impact Overview Counseling Seminar, two
hours 4/9/08
Certificate of Achievement - Homicide Victim Impact Counseling Session, two
hours 4/30/08
Certificate of Completion - Set FREE Dependency Treatment and Discipleship
Program, In Pursuit Ministries, Detroit Lakes, MN 5/26/08 12 lessons
Instructor’s Certificate - instructed Adult Continuing Education Legal research
5/28/08
Addiction and Recovery
Giles has been addicted to alcohol, cocaine and heroin. He has used PCP, LSD and
marijuana. This is not an unusual list. What is unusual, in my experience, is that Giles
used alcohol, cocaine and heroin daily for many years. It is also significant that he almost
always used cocaine and heroin while alone. All of this suggests that Giles has been
using drugs and alcohol to avoid the emotional discomfort that came with facing his life
without mind-altering substances.
Recovery from this pattern of addiction is quite possible. It requires the sort of dedication
and focus that Giles is demonstrating with his avid quest for knowledge about addictions
and recovery from them. His writing discusses his transformation:
I have been able to see with clarity that drugs are responsible for a tremendous
amount of death and destruction in my personal life as well as in the community
in general. I played a part in this, and for that I am indeed sincerely apologetic.
By the same token, I am also grateful for the opportunity to actually be able to
identify and acknowledge my personal wrongs to myself, my family, and my
community. The reason I am grateful is because I am no longer in denial about
these things. I once was in a deep state of denial. I had a selfish and self-centered
12
perspective. I was driven by instant gratification and the worst part was that I
couldn’t even recognize it once I got to a certain point.
My understanding of gratitude is that there is an action component involved. It is
not just about being thankful. It is also about returning the benefits received.
I was told by a very wise man that a teacher cannot teach what he doesn’t know
and a leader cannot lead where he does not go. With this frame of reference I
devour anything that is conducive to my personal health and well-being on all
positive and productive facets of my life.
The founder of Alcoholics Anonymous, Bill Wilson, said “Gratitude should go forward,
rather than backward. In other words, if you carry the message to still others, you will be
making the best possible repayment for the help given you.” Giles has learned this
lesson. It has been my experience that people who can appreciate the changes that have
been forced on them by their arrest often do very well in recovery.
One of the more powerful motivators for Giles has always been his family. He has
always wanted to be their protector, their hero. Most of the regrets he has in his life stem
from his failures to be their protector.
Giles’ brother, Ronnie, died in December of 2007, at a time when Giles was in custody. I
had spoken to Giles a number of times prior to Ronnie’s death. Ronnie had become
addicted to heroin and was eventually reduced to living in a shelter for homeless men.
Giles sent word, through their sister Patricia, that he would like Ronnie to visit him at the
MCC. Giles told me that most of his Fourth Step in AA (“Made a searching and fearless
moral inventory of ourselves”) was about his brother and his feelings about his family.
When Ronnie came to see him, Giles convinced his brother to seek treatment. Ronnie
eventually found his way to the Christian Industrial League of Chicago, a program that is
more than a hundred years old and is dedicated to improving the lives of homeless people
through employment and the support needed to find and keep employment. The next time
Giles saw Ronnie, his brother had been sober for sixty days. Giles asked Ronnie, through
Patricia again, to come to his trial. Two days later, Ronnie died of natural causes. Giles
considers it one of the great blessings of his life that Ronnie died clean and sober.
Patricia told him that the people from the Christian Industrial League who spoke at
Ronnie’s funeral called him an inspiration to everyone there.
Detention
The fact that Giles has been detained for more than four years has given us the
13
opportunity to know him well. In fact, I believe that I have spent more time talking to
Giles, both in person and by telephone, than any other client I have dealt with in my
thirty-three years in the federal system.
Giles has had no discipline problems, no write-ups, in the entire time he has been in
federal custody. As noted above, he has taken an impressive number of self-help and
educational classes. He has used the time to serve others as well as improve his own
skills. I have letters from a large number of inmates who want Your Honor to know how
important Giles has been in their lives. Maynard Billings writes: “From the first time
I’ve met Mr. Wilson, he poured out his love, and compassion toward humanity. Even at
his bottom, which is very hard and truly emotional for another man to hear. He has a
heart for others.” George Shans: “I’ve known brother Giles Wilson for two years now.”
“He was one of the first brothers that offered to help me. Ever since I’ve known him, he
has always extended his hand to be of service to anyone. He is one of the most humble
men in here I know. In here you don’t find too many people humble, and willing to help
someone.” “Giles is a very hard worker, and is well-liked by fellow inmates. If you ask
him something and he doesn’t know; then he will tell you straight up he doesn’t know the
answer to your question.”
Fred Corson says in his letter: “I have seen how he goes out of his way to help out people
in their research and have a better understanding of the law. He has been very helpful at
preparing & teaching the classes. Giles is also a giving person outside of the classroom.
He shares his food with other inmates and helps them out in anyway him can.” Joseph
Smith says: “I’ve watched Mr. Wilson go out of his way to help others including myself.”
“I truly thought I was spiritually where I needed to be but I wasn’t and Mr. Wilson is
someone I can say God is truly using, because no-one really wants to help no-one in this
kind of predicament but Mr. Wilson stop to help he could actually be a hero!” “I watch
him on a spiritual level talk to the fellow inmates, teach G.E.D., teach law assist and
promote the betterment of me encouraging to take up parenting to get to know your kids,
taking abusive courses dealing with your family and friends. But again let me stress I
think he is a hero!”
Jerry Strahan:
I have been around Mr. Wilson for a little over 21/2 years so I pretty much can
speak for his character since I’ve been incarcerated with him. He is one of the
main reasons I have decided to change the way I do things. He inspired me to
want to better my life while I’m locked up and he would insist on me not sitting
around doing nothing. He would motivate me to attend A.A. meetings on Sat.
Mornings, he makes me and others attend parenting classes, legal research classes.
He also teaches GED classes to other less fortunate guys. He is a powerful
14
speaker in his religion. He has always been very humble around me. I have never
seen him lose his temper. He is not a trouble maker. I don’t know exactly what
the charges are to his case, but I can say that his attitude does not fit the profile of
a man to be criminally minded.
Mr. Wilson has helped so many inmates since I’ve been here I had to write a letter
just to tell your Honor what type of man was coming before you. Your Honor I’m
pretty sure you receive countless letters coming from inmates all the time, but I
only ask that you would consider this letter to come from the heart. This man
coming before you is a good man, a God-fearing man. Whatever he might have
done in the past, I am here to say that since I’ve known him he has been like an
inspiration to me and so many others.
His sister, Patricia, says that she has seen a significant change in Giles since his arrest.
“Now he has a spiritual program that’s new. That has made a major difference. Alcohol
was a big part of his life. It caused a quick, tremendous downslide. He never went to
meetings. Now he knows he needs them.” “I am the closest person to Giles on this earth.
I traveled to East Moline Correctional Center, to Galesburg and Vandalia to see him.
He’s been locked up before, but this is different. He has changed. This is different. He
has been sending me information about helping to set up a beauty salon business, one of
my long-term goals for myself. He has suggested that I go to Al-Anon meetings to learn
about how to deal with addicted family members. This is so different from his other
incarcerations!”
How Giles Can Shape His Future
The report of the psychologist Dr. William Hills confirms that Giles has no serious mental
health conditions which would affect his ability to be successful in his re-entry plan.
Furthermore, Dr. Hills, who has a long and deep history of working with offenders in the
Illinois Department of Corrections, says that Giles’ criminal activity is directly tied to his
drug and alcohol use.
Except for alcohol and drug dependence, Mr. Wilson does not have a psychiatric
diagnosis. The difficulties he has had in life are directly attributable to alcoholism
and drug dependence. Despite exposure to treatment at age 16 and involvement at
various times in recovery, Mr. Wilson has had a series of relapses.
Successful recovery from life-long substance dependence often requires multiple
exposures to intervention. Each exposure increases the possibility of long term
abstinence. Reviewing documents of Mr. Wilson’s participation in recovery
programs at MCC, it appears he has internalized sufficient control and direction to
15
maintain long term abstinence. Documents reviewed for this evaluation indicate
Mr. Wilson has made impressive strides toward recovery. He has acquired broad
knowledge associated with recovery including understanding and applying the 12Step program which is universally practiced and he has acquired psychological
knowledge associated with understanding triggers and relapse prevention. Free of
the negative influence of alcohol and drugs, Mr. Wilson is not at risk of criminal
activity.
Finally, Mr. Wilson is attached to his family. He has maintained regular contact
with his son and other family members. Attachment to family is a factor in
successful recovery.2
There is a lot of research which indicates what has happened to Giles - his addictions, his
criminal activity, his living at cross purposes to his deep desires to help and protect his
family - is a common outgrowth of the experiences he had as a child. The terms “cause”
and “effect” are not applicable. “Risk factors” and “protective factors” are more useful
concepts. Donald Meichenbaum, a noted authority on children, uses the terms “barriers”
and “strengths or resilience.” The goal of recovery and prevention is to increase the
protective factors while reducing the risk factors.
Meichenbaum defines resilience as “(T)he ability to learn to live with ongoing fear and
uncertainty, namely, the ability to show positive adaptation in spite of significant life
adversities and the ability to adapt to difficult and challenging life experiences.” 3
Meichenbaum says that an accumulation of risk factors produces more difficulties for the
child:
The cumulative impact of these multiple stressors on children was illustrated by
the research of Valerie Edwards and her colleagues at the University of Texas
(2005). They developed an interview/questionnaire that assesses the child’s
exposure to negative Adverse Childhood Experiences, ACE (See Table of ACE
categories). They found that the higher the scores on the ACE, the greater the
likelihood of poorer developmental outcomes, as evident in both psychosocial and
physiological indices.4
2
Draft report of Dr. William Hillman, page 5.
3
“Definitions of Resilience” in Understanding Resilience in Children and Adults:
Implications for Prevention and Interventions by Donald Meichenbaum, The Melissa Institute at
http://www.melissainstitute.org/documents/resilienceinchildren.pdf
4
“Illustrative Evidence of the Stressors to Which Children in the U. S. Are Exposed” Ibid
16
The Adverse Childhood Experiences are: physical abuse, psychological abuse, sexual
abuse, witnessing maternal battering, household mental illness, household substance
abuse, household criminal activity, and parental separation or divorce. Giles’ home had
nearly all of these with the death of his mother and separation from his siblings as added
stressors.
The protective factors, such as a close relationship with one parent, consistent parental
involvement in the activities of the children, and emotional warmth, were quite lacking in
Giles’ family. There have been several studies of the factors that help a child successfully
cope with the stresses of what Dr. James Garbarino, formerly the Co-Director of the
Family Life Development Center at Cornell University and now at Loyola University in
Chicago, calls a “socially toxic environment.” 5 As reported by Dr. Garbarino, three of the
most powerful and important factors leading to resiliency and the ability to cope well are:
1) social support from persons outside the family, 2) an open, supportive educational
climate and parental model of behavior that encourages constructive coping with
problems, and 3) a stable emotional relationship with at least one parent or other
reference person. The third factor, a stable emotional relationship with at least one
reference person, is crucial. Garbarino says “In addition to having social support
effectively available through friends, neighbors, co-workers, and professionals, children
need social support in its most intensive forms: you need ‘someone who is absolutely
crazy about you.’ This is clear from the research on parenting - children must have
someone in this role.” For Giles that someone was not either of his parents, it was Uncle
Jules.
Meichenbaum says that resilience can be learned. “Have a friend and be a friend, take
charge of your behavior, set new goals and make a plan to reach them, look on the bright
side, and believe in yourself.” This has been Giles’ blueprint since he has been in
custody: he has reached out to others both to be supported and to give support, he has
taken charge of his life, and he has begun to believe in his ability to achieve his goals. As
he writes in his re-entry plan:
I have developed a comprehensive re-entry plan for the purpose of ensuring
against falling into the trap of recidivism. This plan is modeled on the Reentry
National Media Outreach Campaign’s program’s outline tailored specifically for
me and my personal needs. My plan focuses on six major themes: Recovery,
Employment, Health, Housing, Family, and Faith.
5
Garbarino, James “Supporting Parents in a Socially Toxic Environment” Internet article
at http://parenthood..library.wisc.edu, p. 11.
17
My plan is built upon the premise that the proper support groups and networks are
necessary to foster the situations and circumstances most conducive to my becoming a
positive and productive member of society. Many of the programs and resources that will
be utilized in executing this plan have been contacted and action has been initiated prior
to my release. Others will not be available for activation until I am actually released.
Also, many of these programs and resources are interrelated.
Research also gives hope for Giles’ recovery from his addictions. Dr. Alan Leshner,
Director of the National Institute of Drug Abuse at the time, gave the following testimony
to the Senate Committee on the Judiciary on March 14, 2001:
Research has brought us to the conclusions that drug abuse is a preventable
behavior and that addiction is an eminently treatable disease. We have gained
greater insight into why people use drugs in the first place. For example, we now
know there are at least two major categories of drug users, and, importantly, they
are clearly distinguishable. One group includes people who are simply novelty
seekers, using drugs solely for their sensational effects. The second group is using
drugs as if they are anti-anxiety or antidepressant substances, trying to compensate
for untreated mental disorders like depression or for terrible living situations such
as dysfunctional families. The prevention and treatment approaches directed at
each group differ significantly. For individuals self-medicating, for example,
attention must be paid to the underlying mental disorder or emotional state, as
well as to the substance of abuse. Similarly in prevention, messages must be
developed that are targeted to the individual's motivation to use drugs.
Findings like these not only increase our understanding of addiction but also help
point us to even more effective new treatments. In fact, NIDA has already
developed and brought to the clinic an array of both behavioral and
pharmacological treatments for addiction and has demonstrated their effectiveness
in clinical trials. Numerous studies have shown that addiction treatments are just
as effective as those for other illnesses. One very important analysis recently
published in the Journal of the American Medical Association (JAMA, October 4,
2000) clearly shows that addiction treatments work just as well as treatments for
other chronic, relapsing illnesses such as asthma, hypertension, and diabetes. In
this analysis, treatment compliance, drop-out rates, and relapse rates were similar
for all four diseases. In short, addiction treatment success rates are comparable to
those for other chronic illnesses.
Our research also shows that comprehensive treatments that focus on the whole
individual, and not just on drug use, have the highest success rates. These
programs provide a combination of behavioral treatments, medications, and other
services, such as referral to medical, psychological, and social services. The array
18
of services provided must be tailored to the needs of the individual patient.6
Giles has wisely incorporated this comprehensive focus into his own self-care plan.
Wolin and Wolin have identified a constellation of strengths which are characteristic of
people who have managed to overcome troubled circumstances and achieve normal
activity and even success. The Wolins provide a formula for treatment goals:
Insight: The mental habit of asking tough questions and giving honest answers,
trying to figure out how things work for self and others
Independence: The right to safe boundaries between yourself and significant
others.
Relationships: Developing and maintaining intimate and fulfilling ties to other
people.
Initiative: Determination to master oneself and one’s environment, including
creative problem solving.
Creativity and Humor: Being able to use creativity to forget pain, using
creativity to express emotions, using humor to reduce tension.
Morality: Knowing what is right and wrong and standing up for those beliefs,
including being willing to take risks for those beliefs.7
There is little question that these characteristics are beginning to be true of Giles as he is
evolving now. The letters we have received on his behalf say that many of these qualities
were true of Giles before, and even during, the time when addictions controlled his life.
His sister, Patricia, says
A senior in high school I became pregnant with my oldest child. Giles
encouraged me to stay in school and get my diploma. He assured me that he
would be there for me and my child. From early in my childhood Giles’
unconditional love and strength helped me create my foundation. I knew that no
matter what happened he would always be there for me. Time and time again he
6
7
http://www.drugabuse.gov/Testimony/3-14-01Testimony.html
S. J. Wolin and S. Wolin, The Resilient Self: How Survivors of Troubled Families Rose
Above Adversity, Villard Books, 1993. Quoted in A Closer Look at Resilience: Rebounding
From the Pain of the Past by Belinda Biscoe, University of Oklahoma, 1999.
19
proved what he said.
Giles’ character is one of courage, wisdom and strength. There have been times
when I felt like giving up. Without him in my life to encourage me, I honestly
don’t know where I would be. Giles is not only my brother but also my best
friend and confidante. He has held the responsibility of being a father to me
through all of my childhood trials and tribulations. Never once turning his back
on me.
Chalee Houseman worked with Giles at Marriott Vacations Club. She eventually became
a dancer at clubs. She says that Giles would often accompany her to be sure that she was
safe.
I never knew Giles to carry a weapon, a gun, a knife, baseball bat, nothing. He
got along with everybody at the clubs and had a lot of respect. There was no need
to get caught up in all of that.
Since being incarcerated Giles has tried very hard to remain positive. He’s
matured as a man and as a person and he just desperately wants to be “normal.”
Conway Dorset is a District Sales manager for Eli Lilly & Company. He has known Giles
and has been a close friend for more than twenty years. He says
With regards to Giles’ character, he has always, in my experience, been a strong
friend, father, brother and parent. Giles is great with people, and I have yet to
meet a person that has gotten to know Giles who didn’t like him. His smile and
laugh are contagious and his willingness to put the needs of others ahead of his
own make him the type of person that people enjoy being around. He has
throughout our lives, strived to encourage his younger brother (Ronnie), sister
(Tisha) and now his son (Donald) the family values that were instilled in us as
children; the value of family, the importance of altruism, and the desire to strive
for creating a better life for our families than we grew up having.
During the time he has spent in the penal system, he has not let time pass him by,
nor has he squandered it. He has committed himself to continuing to educate
himself and quench his thirst for knowledge and improving himself, and to the
extent he has been capable, inspiring others to do the same. A testament to Giles’
impact on others is the fact that through Giles’ influence, his brother (Ronnie) was
able to straighten is life up and become a very productive citizen, before his
untimely death due to natural causes. I don’t think it would have been possible
without Giles’ guidance and influence.
Karen Dorset is a retired Chicago Public School teacher. She is Conway Dorset’s mother.
20
Her perspective that Giles will be a positive force in our community is important:
Giles has been very special to me, because he has always made an effort to share
his joys and keep in touch with me through the years. Whenever he had a special
girlfriend and after the birth of his son, he brought them by for me to meet them.
He has brought or sent me cards, letters, or gifts to let me know that he hasn’t
forgotten me over the years. Since he has been incarcerated, I have received
phone calls around Mother’s day from his son, Donald, with a message from Giles
wishing me a Happy Mother’s Day.
I know that Giles has tried very hard to straighten his life out. I believe that if he
is given a chance, you will see that he will be successful and become a productive
citizen. He has made an effort to continue his education and has become more
spiritual. This has been evident from the communications I have received from
him.
I believe that if given the opportunity, Giles will be able to help young African
American men avoid the mistakes that he has made and possibly avoid ending up
incarcerated. He has a good heart and beautiful personality. I believe he can help
save some of our young men who will listen to him.
Summary
There are a number of characteristics which identify “criminal thinking patterns” - what
Samenow and Yochelson 8 call “criminal thinking errors.” Anyone who has been a part of
the criminal legal system for any length of time will recognize these “errors” - not being
self critical, seeing self as victim with no empathy for real victims, little interest in a
responsible life, lack of effort, failure to learn from the past, a need to control through
deceit and manipulation - as common characteristics of people who end up in prison.
Giles no longer exhibits any of these traits. He has truly and sincerely changed his life
and made every effort to examine his life critically in order to repair the harm he has
caused.
Giles never had any arrests while on parole nor did he have any parole violations. He
does well under supervision. The supervision he will get after his release from federal
custody will provide him with drug treatment and monitoring through urine tests. Giles is
looking forward to this support. He is at an age where, according to recidivism gets to be
much less likely than it is for younger men. The Sentencing Commission says:
8
Inside the Criminal Mind by Stanton Samenow and Samuel Yochelson, 1984
21
Recidivism rates decline relatively consistently as age increases. Generally, the
younger the offender, the more likely the offender recidivates. Exhibit 9 illustrates
the age recidivism trend of the study sample. Among all offenders under age 21,
the recidivism rate is 35.5 percent, while offenders over age 50 have a recidivism
rate of 9.5 percent.9
The challenge for Giles’ future will be to put theory into practice in the real world that
lies outside the prison walls. I strongly believe that Giles will succeed because his plan is
so thoroughly thought out and sensible. He has already put it into practice in the limited
ways which his present circumstances allow. I have gotten to know Giles better than
almost any client I have met in the thirty-three years that I have worked in the federal
legal system. I have seen many clients succeed in their efforts to recover from addictions.
They succeed because they undergo what the Twelve Steps of Alcoholics Anonymous
calls “a spiritual awakening.” Giles has used his guilt as a motivator for change in order
to become the protective, supportive man he has wanted to be since he was a child. He
has awakened.
Giles has made great efforts to build a support system for himself. This includes close
contacts with his family, a network of friends who share his recovery goals, and reaching
out to people who have succeeded in their recovery and can become allies.
We imprison people in order to change them as well as to punish them. All of the things
that are supposed to happen through incarceration have happened to Giles: he has been
taken out of normal society for more than four years, he has been punished by being
locked away from his family for more than four years, he has learned that he needs to
change his life and, best of all, he has turned his energies to transformation and recovery.
His life no longer needs to be a tragedy, it can be an epic of redemption and recovery.
________________________________
James Tibensky, Mitigation Specialist
Illinois Certified Addictions Counselor
9
Measuring Recidivism: The Criminal History Computation of The Federal Sentencing
Guidelines, p.12 at http://www.ussc.gov/research.htm
Angela Parrott, AFPD,
Western District of North
Carolina
&
Kevin Tate, AFPD,
Western District of North
Carolina
Mortgage Fraud:
Introduction to Mortgage
Fraud, Terms and Players
1.
Defending Mortgage Fraud Cases
Introduction to terms and forms
2.
Common Federal Statutes for Mortgage Fraud Prosecution
18 U.S.C. § 1341 – Mail Fraud
18 U.S.C. § 1343 – Wire Fraud
18 U.S.C. § 1344 – Bank Fraud
18 U.S.C. § 1014 – false Statement on Loan or Credit Application
18 U.S.C. § 371 – Conspiracy
18 U.S.C. § 1956(a)(1)(A) and 18 U.S.C. § 1957 – Money Laundering
3.
Common Mortgage Fraud Schemes
Fraud for Housing – misrepresentations by mortgage applicant to obtain a primary
residence
Fraud for Profit – creating fake properties and fraudulently inflating property values to
gain from property sales. Often involves industry insiders and persons paid to
participate.
Property Flipping: Property purchased and quickly resold for artificially inflated
price, usually after a fraudulent appraisal.
Equity Skimming: Investor gets mortgage loan in name of straw buyer who signs
property over to investor, then investor rents property and does not pay the
mortgage.
Foreclosure Rescue Scams: “Consultant” convinces homeowner that foreclosure
can be prevented by transferring the deed, then strips equity through sale of the
home or by securing a second mortgage.
4.
Mortgage Fraud Vocabulary
Players
Borrower: person seeking to purchase, refinance, obtain a second mortgage, consolidate
loans, or establish a HELOC.
Loan or mortgage broker: person with relationship with lenders who promote lenders’
loans to borrowers. Must be licensed.
Loan processor: typically employed by broker and are not licensed. Prepares
recommendation to borrower for the various loans for which the borrower qualifies.
Underwriter: Employed by lender. Performs detailed credit analysis before loan given,
based on the credit information provided by the borrower. Underwriter is responsible for
verifying borrower’s income and credit and to check the appraisal and title report.
Underwriter either approves or denies loan based on the information provided to the
lender. Underwriter may require certain condition to be met before final approval of the
loan.
Account Manager: Underwriter sends loan file to account manager after analysis
completed. Account manager communicates with broker re: approval or denial of loan.
Has final say regarding approval of a loan.
Funding Rep: adds all the numbers involved in the loan and sends final tally along with
loan documents to escrow company, and wires funds to escrow account.
Bird Dog: Reports distressed properties to investor for payment
Certified appraiser: federal law requires that each state license and certify its appraisers
Promoter: attorneys, appraisers, mortgage brokers, and builders who conspire together to
execute fraud. Recruits potential victim (buyer or investor). Falsified loan application
provided to lender (victim) with overvalued appraisal, and overvalued loan given.
Property forecloses because buyer cannot make payments and lender loses money.
Straw Buyer / Straw Borrower: A person whose personal profile is used to serve as a
cover for a transaction. Straw buyers can be willing participants in the scheme who are
paid for providing their names and credit information to make a false purchase. Straw
buyers can also be victims whose identity is being used without their permission (ID
theft).
Straw buyers used in situations where actual borrower does not: qualify for the loan;
intend to live at the residence; exist.
Straw buyers can also sign documents that contain false information.
Red flags with straw buyers: (1) quit claim deed used right before or after closing; (2)
investment property represented as owner-occupied; (3) someone signed on borrower’s
behalf; (4) names added to purchase contract; (5) sale involves relative; (6) no sales agent
in transaction; (7) high FICO score; (8) gift used as down payment despite existence of
assets; (9) power of attorney used for borrower
Loans
Jumbo / Non-conforming loans: Loans that exceed loan amounts allowed by Fannie Mae
and Freddie Mac.
First Mortgages: $417,000 for single family home
Areas with high-cost homes: Fannie Mae can purchase loans with maximum
original principal obligation of up to 125% of area median home price, not to
exceed $729,750
Second Mortgages: $208,500
Liar Loans / Low-doc loans / No-doc loans: loam programs for borrowers with a hard
time producing income and asset verifying documents. Easy for borrower to overstate
income and assets.
HELC: Home Equity Line of Credit. Loan set up as line of credit for maximum draw.
Typically a second mortgage. Draw periods typically 5-10 years, and repayment period
typically 10-20 years.
Secondary Market: Large lenders like Fannie Mae and Freddie Mac who purchase home
loans from primary lender.
Subprime Loans: loan that is offered at a rate above prime for persons who do not qualify
for prime rate loans.
Forms
Uniform Residential Loan Application (URLA / Form 1003): Completed by borrower
and provided to primary mortgage lender or broker. Used to secure loan.
***Compare: Form 1008: Completed by lender or broker and provided to Fannie Mae or
Freddie Mac.
Uniform Underwriting and Transmittal Summary (Form 1008): Standardized mortgage
form used by lenders. Summarizes information used in risk assessment of the mortgage
and final underwriting decision: loan purpose, property type, proposed monthly
payments, debt ratio. Borrower completes this form to begin mortgage application
process.
John Nicholson, AFPD,
Northern District of
Texas
Mortgage Fraud:
Obtaining Critical
Documents Outside of
Discovery In Preparation
For A Dispute On Loss
Obtaining Critical Documents Outside of Discovery in Preparation
for a Dispute on Loss in Mortgage Fraud Cases
John M. Nicholson, AFPD Dallas, (214) 767-2746
I. Different Methods of Calculating the “Loss” per Property
A. 100% of the Loan
Probation and/or the Government may like this method because: (1) it is the
method that results in the highest GL punishment and (2) it is very easy to
calculate.
B. 0% of the Loan
The client may like this method b/c the client believes that the loan amount
corresponds with the house’s actual value as determined by the “bird-dog,”
appraiser, etc.
C. The “Equity Spread”
This is the difference between the amount that the bona-fide seller listed as
the house’s sale price and the amount reported to the lender as the sale price.
D. The amount of the loan minus the value of the house.
This is the method that : (1) the GL supports the most, (2) is supportable by
documents, and (3) is likely the most defense-favorable method of calculating loss
under the GL.
II. What do the GL say about calculating loss? How to get value for the house?
USSG § 2B1.1, comment. (n.3(A)) provides that: subject to the “exclusions
from loss” rule, loss is the greater of actual loss or intended loss.
A. What is the intended loss?
1. What a defendant could have intended is governed by what he/she
knew. What a defendant knew is likely determined by the role that the defendant
had in the offense: LENDER-ringleader-mortgage broker-escrow officer at the title
company-appraiser-“bird-dog”-straw buyer-seller.
2. Is it physically possible for the loss to be 100%? No, not unless
the property securing the mortgage is burned to the ground and toxic waste
dumped on its remains. The house and property must retain some value.
3. Is it legally possible for the intended loss to be 100%? No,
presumably everyone knows that houses retain at least some value in the face of a
fraudulent transaction. Defendants in the real estate business would be even more
aware of this fact. So, even if a defendant intended a victim to lose as much as
possible, it still could not be 100%.
B. What is the actual loss?
1. Typically, this will be the loss amount reported by the “victim” to
the government and/or Probation.
a. Who is the victim anyway? The original “victim” lender
might not be the same “victim” reporting a loss b/c original “victim” lenders often
will have sold the loan to some other entity prior to the house going into
foreclosure. The original lender may fund the loan with the sole purpose of selling
it to someone else.
b. Is “loss” for restitution as calculated by a victim a
reasonable substitute for “loss” for punishment purposes? Even though it would
greatly simplify things, the answer is NO b/c: (1) the victims do not typically have
to “show their work”; (2) the loss should not be determined by a biased party; (3)
the loss calculated by the victim may include costs allowable for restitution but
disallowed by the GL for punishment.
C. What do the GL say about “exclusion from loss?”
1. USSG § 2B1.1, comment. (n. 3(E)(ii)) (“note three”): In a case
involving collateral (the property securing the mortgage) pledged or otherwise
provided by the defendant, the amount the victim (likely the entity reporting a loss
to Probation) has recovered at sentencing from disposition of the collateral, or if
the collateral has not been disposed of by that time (very unlikely), the fair market
value of the collateral at the time of sentencing (preferable but very unlikely).
a. Potential Problem-the GL says collateral pledged by the
defendant which, technically, could limit this provision to the straw-buyer. Argue
that such an interpretation of the provision is too narrow and would result in unfair
sentencing disparities among defendants in conspiracy cases. For example, a
defendant borrower would receive a credit-against-loss on his offense level
because he was the person that pledged the collateral, but his/her co-defendants,
who were mortgage brokers, appraisers, and loan officers would not get the credit
despite being equal parties in the victim acquiring the collateral.
b. When arguing for the employment of note three to calculate
the proper GL loss, emphasize that it is the method most consistent with the true
nature of the offense (fraudulently obtained loans collateralized by property) and is
(at least arguably) supported by case law. See United States v. Calkins, 190 Fed.
Appx. 417 (6th Cir. 2006)(unpublished); United States v. Weidner, 437 F.3d 1023
(10th Cir. 2006); United States v. Staples, 410 F.3d 484 (8th Cir. 2005); United
States v. McCormac, 309 F.3d 623 (9th Cir. 2002); United States v. Johnson, 16
F.3d 166 (7th Cir. 1994); but also see United States v. Gibson, 197 Fed. Appx. 661
(9th Cir. 2006)(unpublished).
III. If the Court agrees to employ note three to calculate the GL “loss,” what “is
the amount recovered by the victim from disposition of the collateral?”
A. The victim might not be the original lender.
B. The restitution amount is not a good substitute for “the amount recovered
from disposition of the collateral.”
C. This IS a knowable number.
D. Even the note three number may be unfair and excessive.
IV. The Documents: what they are, what they show, and how to get them.
A. The loss spreadsheet.
You may receive a spreadsheet as “proof” of the “loss” amount from
either the agent (during discovery) or Probation (in the PSR). This amount will
almost certainly be the restitution amount requested by the “victim” and cannot be
taken at face value.
B. The HUD-1 for the fraudulent transaction.
The HUD-1 is the official record of the original fraudulent
transaction. It will be in the discovery since the government will need it to show
that the original fraudulent transaction took place. If your case is one in which the
straw buyer obtained 100% financing, then the HUD-1 will show the total loan
amount (which is also the sale price).
C. The HUD-1 for the foreclosure sale.
This HUD-1 is the official record of the transaction in which the entity
that was “stuck” with property sold it at foreclosure. It will NOT be in discovery
since the government typically limits its own investigation to the original
fraudulent transaction. It will show the sales price of the property and the amount
that the victim received from the disposition of the collateral. It will show any
questionable expenses. The parties that should have a copy of this document are:
the new buyer, the seller (which may be the original lender), the title company, and
the lender. One should be able to determine the new buyer by accessing county
records or online appraisal documents. Also, if the original “victim” lender (listed
on the original HUD-1) did not sell the loan on the secondary market, then it will
most likely be the seller at foreclosure. If necessary, consider asking for a
subpoena.
D. An itemization of loss from the victim.
Financial entities keep records of their assets and use these records to
report losses to Probation. Ask Probation for an explanation of how the victim
arrived at its loss calculation. If Probation refuses, contact the victim yourself. It
may be necessary to trace the progression of the loan from entity to entity. If the
victim refuses, consider asking the Court for a subpoena in order to bring all
available information to the Court’s attention. This itemization may well include
amounts such as unpaid interest, discounts for preferred buyers, discounts for
buyers that purchase multiple properties, late fees, penalties, etc.
1. What do the GL say about including these types of amounts for
punishment?
i. USSG § 2B1.1, comment. (n.3(D)(i)) provides that loss shall
not include interest of any kind, finance charges, late fees, penalties, amounts
based on an agreed-upon rate of return, or similar costs.
E. Appraisal District Records
Normally available online. They provide the taxable value and/or
market value of a property as determined by the county. The online records
frequently include the history of a particular property. Although one must consider
how a county calculates its own appraisals, one can use these records to show the
Court how even a properly computed “loss” amount under the GL can grossly
overstate the financial harm created by the defendant’s conduct. Frequently, the
appraisal district records show that the “victim” disposed of the collateral (by
selling the house at foreclosure) at an amount that is substantially below market
value and that, in some instances, it would have been possible for the victim to
have turned a profit as a result of the defendant’s offense. If the difference b/t the
loan amount and the appraised market value is only 15% of the GL loss amount,
the Court may want to know by way of an 18 U.S.C. § 3553(a) argument.
V.
Litigating the loss amount in mortgage fraud cases is all about getting credit
for the value of the houses. Urge the Court to employ note three to
determine the GL loss and be ready to show it. Also investigate whether the
properly-calculated GL is nevertheless too high to be fair under 3553(a).
Try to obtain and use all of the associated documents. Start as soon as
possible since the process can be very time-consuming. If you are only able
to secure these types of documents for some of the properties, consider using
an extrapolation argument (like Probation does in drug cases to calculate
total drug quantity from a few transactions) to make them apply to all of the
loans.
A. The HUD-1 from the original fraudulent transaction. This should be in
the discovery.
B. The “spreadsheet” showing the victim-reported loss. This should be
available from the AUSA, agent, or Probation via the PSR.
C. The HUD-1 from the foreclosure sale. This will not likely be in
discovery. To find it, determine the parties to the transaction either by looking at
the original HUD-1, county records, or online appraisal records. Then, contact the
party and ask for it. Consider asking the Court for a subpoena if all else fails.
D. The itemization of loss calculations by the victim. Presumably, the
victim had to employ some method of calculating the loss that it reported to the
agent or Probation. If so, it ought to still exist somewhere. The victim may be
listed in the discovery and, if so, contact it directly. If not, call around to determine
who the victim is and ask for the itemization. Consider asking the Court for a
subpoena if all else fails.
E. Appraisal records. These are usually available online and one can access
them just by knowing the property address. They will tell you the owner of the
property and the appraised market/tax value of the property.
This session will provide an introduction to determining loss
and will outline critical documents that should be obtained
that are not ordinarily provided in discovery
Presented by John Nicholson, AFPD, Northern District of Texas
214-767-2746
`
`
`
`
100% of the loan
Loan - Value of Home = Loss
“Equity Spread”
0% of the Loan
`
`
`
`
`
`
`
`
Lender
Ring Leader
Mortgage Broker
Closing Officer
Appraiser
Bird Dog
Straw Buyer
Seller
Is loss reported by Victim
for restitution the same as
“loss” for the Guidelines?
Loss shall be reduced by the following:
In a case involving collateral pledged or
otherwise provided by the defendant, the
amount the victim has recovered at the time
of sentencing from disposition of the
collateral, or if the collateral has not been
disposed of by that time, the fair market
value of the collateral at the time of
sentencing.
Loan Date
Address
Mortgage
Company
Loan
Amount
Reported
Loss
04/08/2005
2209 Post
Oak Drive
Sherman, TX
New Century
Mortgage
Corp.
$288,829.48 $130,994.03
04/08/2005
2209 Post
Oak Drive
Sherman, TX
New Century
Mortgage
Corp.
$71,555.41
$71,966.76
`
`
`
Total loan $360,384.89 ($360K)
Total loss- (from victim) $202,960.79 ($200K)
Total value of
2209 Post Oak
(according to victim)
$157,424.10 ($157K)
Total loan
$360K
- Disposition of Collateral ($240K-$40K= $200K)
Loss=
$160K
`
`
`
Victim reports loss as:
$251,865.87
Victim calculates loss by:
◦ Loan principal balance
$459,440.54
◦ Net liquidation proceeds - $207,574.67
$251,865.87
How did Victim calculate these numbers?
`
`
Q: What do Guidelines say about the basis for
extra $70K for punishment purposes?
A: USSG § 2B1.1, n.3(D)(i)
- Exclusions from Loss - Loss shall not
include the following: Interest of any kind,
finance charges, late fees, penalties, amounts
based on an agreed-upon return or rate of
return, or other similar costs.
`
Probation:
Victim:
$360K (100% loan)
$200K (100% loan –
`
Note Three:
$160K (100% loan –
`
disposition of collateral
+ potentially prohibited
expenses)
disposition of collateral)
- But is $160K fair under § 3553(a) ? Does it
exaggerate severity of loss?
Original Loan in 2005 is $360K
Original Loan in 2005 is $360K
Original Loan in 2005 is $360K
Original Loan in 2005 is $360K
Original Loan in 2005 is $360K
`
`
`
Loss by Probation: $360K
Loss by Victim:
$200K
Note Three Loss: $160K
Year
2004
2005
2006
2007
2008
Appraised Value
Difference
$327,134 (1 yr prior to fraud) -$32,866
+ $47
$360,047 (yr of fraud)
-$10,526
$349,474 (yr of foreclosure)
$349,308 (1 yr after foreclosure) -$10,692
+$10,251
$370,251 (yr of sentencing)
`
`
`
`
`
`
HUD from original transaction (discovery)
Spreadsheet of loss (discovery/USPO)
HUD from foreclosure sale (from party to
transaction – buyer/seller/lender/title)
“Victim” itemization (phone calls, email, etc.)
County Appraisal docs (internet)
Consider asking Court for subpoena
1.
Determine n.3(E)(ii) amount and be ready
to fight for it!
2.
Determine if there is a lesser amount and
if so, be ready for a § 3553(a) argument
Kevin Tate, AFPD,
Western District of North
Carolina
Litigation Tactics and Defending
A Mortgage Fraud Case
LITIGATION TACTICS FOR
DEFENDING
“MORTGAGE FRAUD” CASES
KEVIN A.
A TATE
ASSISTANT FEDERAL DEFENDER
FEDERAL DEFENDERS
SO
OF WESTERN
S
NORTH
O
CAROLINA
LOS ANGELES,
ANGELES CALIFORNIA
SEPTEMBER 6, 2008
CHARGING SCHEMES
„
18 U.S.C.
U S C 371 CONSPIRACY
„
„
„
„
„
BANK FRAUD
WIRE FRAUD
MAIL FRAUD
MONEY LAUNDERING
HONEST SERVICES
PRE--TRIAL MOTIONS
PRE
€
€
DUPLICITY AND MULTIPLICITY CHALLENGES (FLUSH OUT AND MAKE
GOVERNMENT COMMIT TO A THEORY))
MOTION TO PRECLUDE OPINION/EXPERT EVIDENCE
€
y
GOVERNMENT EXPERT WITNESS CONSTANCE WILSON
http://www.interthinx.com/pdf/ITX_InvestTeam_broFNL.pdf
SEEK TO DETERMINE HOW MUCH GOVERNMNET IS PAYING WILSON
FOR TESTIMONY
○ WHAT IS THE ARRANGEMENT BETWEEEN INTERTHINX AND
DEPARTMENT OF JUSTICE FOR CONTRIBUTIONS TO HER WEBSITE
AND PUBLICITY FOR DOJ MORTGAGE FRAUD INITIATIVES
DAUBERT/KUMHO CHALLENGE FED. R. EVID. 702 AND 704
○ OPINIONS THAT TRANSACTION AND/OR DOCUMENTS USED WERE
FOR “FRAUDULENT PURPOSE”
○ CONCLUSORY TESTIMONY REGARDING THE “ROLE OF MORTGAGE
FRAUD PARTICIPANTS”, “THE PROPRIETY OF MORTAGE LOAN
DOCUMENTS”, AND “THE STRUCTURE AND DIVISION OF WORK
WITHIN MORTGAGE FRAUD ORGANIZATIONS
ORGANIZATIONS”
○ CONCLUSORY TESTIMONY REGARDING “ECONOMIC LOSS” , “THE
VALUE OF REAL ESTATE”, “AMORTIZATION” AND “PROFIT/LOSS
ANALYSIS”
○
€
PRE--TRIAL MOTIONS
PRE
€
BILL OF PARTICULARS
•
•
•
PIN GOV’T DOWN ON THEORY OF FRAUD AND THE EXACT FALSE
STATEMENTS CHARGED AS ITS THEORY OFTEN “EVOLVES” BASED ON
FACTS ADDUCED AT TRIAL
FALSE STATEMENT OR SCHEME CHARGED IN INDICTMENT MUST
MIRROR STATEMENT OR SCHEME PROVEN AT TRIAL
IF NOT, ANY VARIATION EFFECTS A DEFENDANT’S SUBSTANTIAL
RIGHT TO BE TRIED ON CHARGES PRESENTED TO THE GRAND JURY.
SEE STIRONE V. UNITED STATES, 361 U.S. 212, 217 (1960); UNITED
STATES V. HOOVER, 467 F.3D 496 (5TH CIR. 2006)
PRE--TRIAL MOTIONS
PRE
€
€
€
MOTION TO STRIKE PREJUDICIAL SURPLUSAGE
FED.R.CRIM.P. 7 (d)
UNITED STATES V. MILLER, 471 U.S. 130, 136136-37 (1985)
(ALLEGATIONS UNNECESSARY TO PROVE THE CRIME ARE
SURPLUSAGE)
€ “MORTGAGE FRAUD” IS NOT A FEDERAL OFFENSE
€
€
○
○
○
○
○
TERM IS OVERLY PREJUDICIAL. FED.R.EVID. 402 AND 403
LEADS TO JURY CONFUSION AS TO OFFENSE COMMITTED
“FRAUDULENT FLIP”
“MORTGAGE FRAUD SCHEME”
“PROMOTER”
“INFLATED APPRAISAL”
“THE SCHEME”
AVOID MASS STIPULATIONS TO
VOLUMINOUS
O
O S DOCUMENTS
OC
S
€
YOU ARE BEING SET UP FOR INTRODUCTION OF PREJUDICAL
1006 SUMMARIES TO BE DISPLAYED TO JURY
y WITNESSES ARE OFTEN GOVERNMET AGENTS WHO WILL
TAILOR TESTIMONY AND EXHIBIT TO EXPLAIN TRIAL
EVIDENCE AND GOVERNMENT VERSION OF EVENTS
y WILL CERTAINLY BE USED DURING PROSECUTION’S CLOSING
ARGUMENTS
* ARGUE THAT SUMMARY DOES NOT ACCURATELY REFLECT
UNDERLYING DOCUMENTS*
* INVOKE RULE 1002 “BEST EVIDENCE RULE* TO PRECLUDE
INTRODUCTION OF DOCUMENTS AND INCLUSION IN ANY SUMMARY*
- IF YOU BLINDLY STIPULATE TO THE ADMISSION OF VOLUMINOUS
RECORDS WITHOUT EVER REVIEWING THEM THE PROSECUTION
WILL PREPARE A SELFSELF-SERVING CHART TO CONVICT YOUR CLIENT
APPROACH TO DEALING WITH
TESTIFYING
S
G STRAW
S
BUYERS
S
€
€
€
MAKE THE GOVERNMENT ELECT WHETHER THE BUYER IS
AN INDICTED OR UNINDICTED CO
CO--DEFENDANT OR VICTIM
IF GOVERNMENT DECLARES THE WITNESS A “VICTIM”:
MOVE TO PRECLUDE 801 (d) (2) (E)
STATEMENTS/TESTIMONY BY WITNESS
IF GOVERNMENT DECLARES THE WITNESS A “CO“CODEFENDANT”
y
HAS THE WITNESS BEEN CHARGED ?
○
○
y
NO= REQUEST IMMUNIZED WITNESS INSTRUCTION PRIOR TO OR
FOLLOWING TESTIMONY
YES= REQUEST INSTRUCTION THAT TESTIMONY MUST BE
CONSIDERED BY JURY USING GREAT CAUTION AND CARE
IF A CONVICTION RESULTS ELECTION WILL BECOME
RELEVANT TO SENTENCING GUIDELINES AS ONE PERSON
CANNOT BE BOTH A CO
CO--DEFENDANT AND VICTIM
FRAUD/HONEST SERVICES
DEFENSES
S S
€
€
NO SPECIFIC INTENT TO DEFRAUD
y
CONDUCT WAS RECKLESS OR NEGLIGENT
y
USED AGAINST UNDERWRITERS, BROKERS AND
APPRAISERS
“HONEST SERVICES PROSECUTIONS”
○
-
*CONDUCT MUST BE INTENDED TO DEFRAUD THE
LENDER*
LENDER
*
*DEFENDANT MUST HAVE AN ACTUAL FIDUCIARY
RELATIONSHIP WITH LENDER OR BUYER*
BUYER*
*A DEFENDANT IS NOT ENTITLED TO CREDITS
AGAINST LOSS PURSUANT TO 2B1.1 (E) FOR HONEST
SERVICES CONVICTIONS*
BANK FRAUD DEFENSES
€
MATERIALITY DEFENSE
y
y
y
WAS THE OMISSION OR FALSE STATEMENT “MATERIAL”
TO THE DECISION TO FUND THE LOAN
“ THE GIANT POOL OF MONEY
MONEY”” NPR EXPOSE FEATURED
ON PROGRAM “THIS AMERICAN LIFE”
CHRONICLES THE COMPLICITY OF THE MORTGAGE
LENDING INDUSTRY IN ENCOURAGING MORTGAGE
FRAUD
y
y
y
y
y
y
y
SECURITIZATION AND “BUNDLING” OF LOANS FOR IMMEDIATE SALE TO
OVERSEAS INVESTORS
“STATED INCOME”
“NO
NO CLOSING COST AND OTHER LENDER INCENTIVES
INCENTIVES”
SIMULTANEOUS 1ST AND 2ND MORTGAGES BY SAME LENDER
SIMULTANEOUS CLOSINGS
PAYMENT OF “YIELD SPREADS” TO BROKERS
QUOTAS FOR UNDERWRITERS
BANK FRAUD DEFENSES
€
€
€
NO FEDERAL OFFENSE KNOWN AS “MORTGAGE
FRAUD”
JURISDICTIONAL CHALLENGES TO BANK FRAUD
18 U.S.C. 1344 (BANK FRAUD)
y
y
DEFRAUDED LENDER MUST BE IDENTIFIED IN
INDICTMENT
DEFRAUDED LENDER MUST BE INSURED BY FDIC
○
○
○
“COUNTRYWIDE” LOANS MAY NOT BE PROSECUTED UNDER
1344
BANK OF AMERICA IS NOT VICTIM FOR COUNTRYWIDE
MORTGAGE LOANS ALTHOUGH NOW A SUBSIDIARY
CREDIT UNIONS AND THRIFT LOANS ARE NOT APPLICABLE
MAIL/WIRE FRAUD DEFENSES
- MAIL AND WIRE FRAUD
*REQUIRES MAILING OR WIRE IN FURTHERANCE
OF THE FRAUD SCHEME
*TIMING OF THE MAILING IS CRITICAL
*HAS THE FRAUD ALREADY BEEN
COMPLETED AT THE TIME OF MAILING OR
WIRE
*IF SO, MAILING OR WIRING COULD NOT
HAVE BEEN IN FURTHERANCE OF THE OFFENSE
CONSPIRACY DEFENSES
€
SCRUTINIZE THE “SCHEME TO DEFRAUD”
y
MUST INVOLVE SOME FORM OF A “PLAN OR PATTERN”
SEE E.G. UNITED STATES V. DOBSON, 419 F.3D 231, 239
(3D Cir. 2005) (discussing “culpable participation
requirement”))
requirement
y
y
DEFENSE MAY BE APPLICABLE TO APPRAISERS, STRAW
BORROWERS AND OTHER PERSONS WHO MAY HAVE
ENGAGED IN ONE OR LIMITED REAL ESTATE
TRANSACTIONS BUT DID NOT PARTICIPATE IN THE
LARGER SCHEME
ELICIT EVIDENCE ON CROSS OF
y
y
y
BUYER / S
SELLER RELATIONSHIP
O S
MULTIPLE CONSPIRACIES
DISTANT CLIENT FROM ILLEGAL CONDUCT OF CO
CO-DEFENDANTS AND TESTIFYING WITNESSES
MONEY LAUNDERING
DEFENSES
S S
€
18 U.S.C. 1956 (a) (1) (A) and 1956 (h) (PROMOTION MONEY
LAUNDERING)
y *OFFENSE MUST INVOLVE “PROFITS” NOT MERE “PROCEEDS OR
RECEIPTS” OF THE SCHEME*
RECEIPTS
SCHEME
y
UNITED STATES V. SANTOS, 128 S.CT 2020 (2008) (PROCEEDS
TO PAY EXPENSES OF ILLEGAL ACTIVITY ARE NOT “PROFITS”);
UNITED STATES V. SHELBURNE, 2008 WL 2588057
(W.D.VA) (PAYMENT TO ONESELF WITH UNLAWFUL PROCEEDS
IS NOT PROMOTION)UNITED STATES V. MILES, 360 F.3D
472, 475475-76 (5TH CIR. 2004) (PAYMENT
(PAYMENT OF PAYROLL
EXPENSES AND OFFICE RENT IS NOT PROCEEDS)
PROCEEDS)
y
* PROMOTION TRANSACTION MUST INVOLVE PROFITS OF
THE ILLEGAL ACTIVITY NOT JUST MERE RECEIPTS OF
MONEY FROM UNLAWFUL ACTIVITY*
MONEY LAUNDERING
DEFENSES
S S
€
€
18 U.S.C. 1957 (MONETARY TRANSACTIONS
IN CRIMINALLY DERIVED PROPERTY OVER
$10,000 DERIVED FROM PROCEEDS OF A
SPECIFIED UNLAWFUL ACTIVITY)
“CRIMINALLY DERIVED PROPERTY” = ANY
PROPERTY DERIVED FROM “PROCEEDS” OF
THE CRIMINAL OFFENSE”
y
CITING SANTOS
SANTOS, ARGUE THAT MONEY USED
FOR TRANSACTIONS WAS NOT ACTUAL
PROFITS AND THUS, NOT “PROCEEDS”
MONEY LAUNDERING
DEFENSES
S S
€
SECTION 1957 OFFENSES ONLY INVOLVE “PROCEEDS”
(PROFITS) OF PRIOR COMPLETED CRIMINAL OFFENSES
€
TIMING OF TRANSACTION IS KEY
y
y
WAS THE SCHEME COMPLETED ? IF NO, TRANSACTION DOES
NOT APPLY FOR PURPOSES OF 1957. SEE E.G. UNITED STATES
V. VARNADO, 3:06 CR 415 (W.D.N.C. 2006);(MAKING
ARGUMENT IN HEALTHCARE FRAUD CASE);
); UNITED STATES V.
MYRNA TRAN, CR 0505-00124 (N.D. TEXAS 2005)
IN BOTH VARNADO AND MYNA TRAN A NOMINEE WAS USED
TO OPEN BANK ACCOUNT THAT UNLAWFUL PROCEEDS WERE
WIRED INTO. THE ARGUMNET IS THAT THE SCHEME WAS NOT
COMPLETE AS THE SCHEME CONTINUED WHEN MONEY WAS
TRANSFERRED OUT OF THE NOMINEE ACCOUNTS TO
PRINCIPAL CONSPIRATORS
MONEY LAUNDERING
DEFENSES
S S
€
€
€
€
€
PRESERVE AND CHALLENGE VENUE
THE PROSECUTION BEARS THE BURDEN OF ESTABLISHING VENUE AT
TRIAL BY A PREPONDERANCE OF THE EVIDENCE
QUESTION IS WHERE THE OFFENSE BEGUN, CONTINUED
THROUGH OR ENDED SEE UNITED STATES V
V. CABRALES
CABRALES,, 524 U.S.
US 1
(1998)
y *FRAUD OFFENSE IS COMPLETE WHEN AND WHERE LOAN
APPLICATION SUBMITTED AND APPROVED FOR FUNDING*
FUNDING
CONSTITUTIONAL VENUE PROVISONS “WERE DESIGNED TO BENEFIT
THE ACCUSED IN CRIMINAL TRIALS. SEE E.G. UNITED STATES V.
SMITH, 452 F.3D 323, 334 (4TH CIR. 2006)
VENUE MUST BE APPROPRIATE FOR EACH AND EVERY COUNT IN THE
INDICTMENT. SEE UNITED STATES V. BOWENS,
BOWENS, 224 F.3D 302, 308
(4TH CIR. 2000)
PRACTICE TIPS
„
„
AT TRIAL ELICIT SPECIFIC TESTIMONY/EVIDENCE ON THE
FOLLOWING TOPICS
„ WHAT HAPPENED TO THE LOANS
„ WAS IT SOLD ON THE SECONDARY MARKET TO
INVESTORS OR FANNIE OR FREDDIE MAC
„ IF A FORECLOSURE, WHEN DID AND WHY DID IT
OCCUR ?
EVIDENCE/TESTIMONY ON LOSS
„
WILL DETERMINE IF CLIENT GOES TO JAIL IF
CONVICTED
„ UNITED STATES v. GOGHILL, 204 Fed.Appx 328 (4th
Cir. 2006)) (loss
(
is outstanding
g principle
p
p of bank loan
less amount victim recovers from liquidation)
PRACTICE TIPS
„
„
„
UNITED STATES v. WILSON, 980 F.2d 259, 262
(4th Cir. 1992) (amount of loss is the loss related
to the false statement rather than total loss and
must subtract the amount the lender has
recovered)
UNITED STATES vv. GHARDI
GHARDI, 510 FF.3D
3D 550 (5TH
Cir. 2007) (discussing loss in bank fraud cases)
UNITED STATES v. GALLOWAY, 509 F.3d 1246
(10th Cir.
Cir 2007) (use gain as an estimate of loss)
Kurt May, AFPD,
Western District of
Texas
Mental Health:
Recognizing and
Confronting Mental Health
Issues
MENTAL HEALTH ISSUES IN FEDERAL CRIMINAL CASES
Materials by Shereen J. Charlick, Presentation by Kurt G. May, Revisions by Laura Spindler,
I.
II.
IDENTIFYING ISSUES
A.
Initial interview: ask mental health, medical, substance abuse Qs in every case
B.
Family involvement
C.
Ask client about mental health history: obtain records release
D.
Obtain Medical/mental health history from prior providers
E.
Request Bureau of Prisons/jail facility records: (client can request)
F.
Independent Evaluation: ex parte application
COMPETENCY
A.
If client does not appear competent, provisions of 18 U.S.C. § 4241 govern:
Two-part test: is the defendant suffering from a mental disease or defect which: makes
him unable to understand the nature and consequences of the proceedings against him
OR unable to assist in his defense
1.
any time after case filed and before sentencing, defense has obligation to
advise court of competency issues 18 U.S.C. § 4241(a).
2.
initial evaluation usually in charging district; if found suffering from
mental disease or defect rendering him incompetent, committed to custody
of AG for reasonable period of time not to exceed 4 months. 18 U.S.C. §
4241(d)(1).
3.
reasonable extension of 4 month period permitted but only if: “there is a
substantial probability that within the extended time, will attain
competency. 18 U.S.C. § 4241(d)(2); United States v. Rivera-Guerrero,
426 F.3d 1130, 1144 (9th Cir. 2005).
4.
While it is contrary to statute (18 U.S.C. §4241(d) says “the court shall
commit the defendant” to AG’s custody), there are some authorities
allowing second-stage evaluation process to be non-custodial. See United
States v. Gomez-Borges, 91 F. Supp. 2d 477 (D. Puerto Rico 2000); and In
re Newchurch, 807 F.2d 404 (5th Cir. 1986); But see United States v.
Strong, 489 F.3d 1055, 1057-62 (rejecting due process challenge to
custodial commitment because it is limited in duration to terms of statute).1
5.
Evaluation period ends when defendant is restored to competency or is
found to be incurably incompetent: not likely to be restored to competency
in foreseeable future. 18 U.S.C. § 4241(d)(2).
If client is deemed incompetent and not likely to be restored, absent certification of
dangerousness under 18 U.S.C. § 4246 or certification of sexual dangerousness
under § 4248, defendant must be released as are no statutory grounds to commit him
and he cannot be tried.
B. 18 U.S.C. § 4246: next step to be taken while defendant remains hospitalized at
facility
1. Civil commitment: § 4246
a.. Requires that upon expiration of § 4241(d) commitment (4 months +
“reasonable time”)
b. Director of facility where defendant is hospitalized certifies the following:
•
Defendant presently suffering mental disease/defect such that
release “create[s] a substantial risk of bodily injury to another
person or serious damage to property of another”
•
and suitable state custody is not available
NOTE: danger to self does not qualify
2. Certificate of Mental Disease and Dangerousness
•
Must be filed with district court “in the district in which the person
is confined:
•
Defendant must be incurably incompetent
•
Mental disease/defect which causes substantial risk, danger to
1
The Strong case did not reject the statutory argument that 18 U.S.C. § 4247(b) permits the Court
to decide it it is going to commit someone for the examination/evaluation. See 18 U.S.C. §
4247(b) (“the court may commit the person . . . .”), thus, if a conflict exists between section
4247(b) and section 4241(d), the defendant should obtain the more favorable reading of the
statute under the rule of lenity.
2
person/serious risk to property
•
State won’t take them (usually b/c are undocumented individuals
•
Person must still be hospitalized at facility when certificate filed
3. Do courts have authority to initiate 4246 evaluations?
•
NOT ACCORDING to the statute
Only upon filing of Certificate by Doctor can Court order a hearing to assess
dangerousness
•
18 U.S.C. § 4246(a)
4. Cases do not allow it either
Weber v. U.S. District Court, 9 F.3d 76 (9th Cir. 1993) (granting mandamus relief
where district court sent someone back to facility with directive to evaluate for
danger).United States v. Lapi, 458 F.3d 555 (7th Cir. 2006) (no authority to
commence § 4246 hearing).
United States v. Baker, 807 F.2d 1315 (6th Cir. 1986) (same).
C.
If incurably incompetent and not dangerous (or if finding under 4246 not
properly made, defendant must be released.
D.
Defendant's statements made to doctor pursuant to court-ordered
competency evaluation be used against him subsequently at trial or
sentencing, unless the defendant gives notice under Federal Rule of
Criminal Procedure 12.2(a) (insanity defense) or (b)(1) (defensive use of
evidence of mental condition on issue of guilt). See Fed. R. Crim. P.
12.2(c)(4) (precluding use of statements made during competency
examination); also see 18 U.S.C. § 4241(f) (findings of competency
inadmissible and cannot be used to prejudice trial defenses).
E.
Adverse 4241, 4246 and medication decisions ARE appealable.
1. Section 4241, 4246 orders are “collateral” for interlocutory appeal
purposes; see United States v. Friedman, 366 F.3d 975, 979 (9th Cir.
2004); United States v. Ferro, 321 F.3d 756, 760 (8th Cir. 2003); United
States v. Filippi, 211 F.3d 649, 650-51 (1st Cir. 2000); United States v.
Boigegrain, 122 F.3d 1345, 1349 (10th Cir.1997) (en banc) (overturning
3
prior circuit precedent); United States v. Davis, 93 F.3d 1286, 1289 (6th
Cir.1996); United States v. Weissberger, 951 F.2d 392, 396 (D.C. Cir.
1991); United States v. Gold, 790 F.2d 235, 239 (2d Cir. 1986)
2. Sell orders are appealable as well. Sell, 539 U.S. at 176-77.
III.
•
They are considered “collateral orders”not dependent upon
resolution charged offense in case
•
Can be appealed as an interlocutory appeal
SELECTING AND PROTECTING YOUR EXPERT
A. Different types of specialists: just some examples.
1.
Licensed Social Workers: Family/relationship/gang/cultural
dynamics,battered person's syndrome, PTSD. Also participate in
counseling, therapy, can opine about need for, effect of same,
2.
Family/Marriage/Relationship Counselors: usually have
Master's degree in social work, counseling but sometimes only Bachelor's.
States have differing requirements clinical experience.
3.
Psychologists: specialize in treating mental illnesses, conduct
clinical interviews/evaluations to diagnose mental illness, personality,
language, expressive disorders, competency evals, cannot prescribe
medications (but some have degree in psychopharmacology).
4.
Psychiatrists: medical doctors who specialize in mental illnesses,
illnesses of the brain, can prescribe medications, can opine about effects,
side effects of medications. Also does clinical interviews, evals, can also
discuss effects of medications or failure to take them on clients.
5.
Psychiatric Nurses: R.N. with specialized training in
psychotherapy, psychiatry, can often prescribe medications for treatment
of mentally ill.
6.
Addiction Specialists: can opine about effects of drugs
(involuntary or voluntary), medications, combinations of both,
withdrawal, brain damage due to substance abuse, effect of addiction on
family members (or effect of addicted family member on client).
7.
Neuropsychologist/Neuropsychiatrists:
can diagnose, opine
about, treat, brain disorders caused by organic, chemical issues, i.e., brain
4
damage caused by injury, birth defect, illness, fetal alcohol syndrome.
B.
Resources
Internet sources, re specializations in mental health field, PDR Drug
Guide, DSM IV, www.mentalhealth.com, www.pohly.com/admin/m_h,
NAMI, listservs, medical malpractice, plaintiffs PI lawyers.
C.
Evaluations/Reports/Confidentiality
1.
If client detained, move ex parte for initial eval, permission enter
jail, access medical/treatment records at jail. Gov't no right to learn
defense strategy -- if client were not detained or were monied, would not
know of these matters.
2.
Report or No Report?
No requirement under FRCP 16 report be prepared. Often report
gives more fodder for cross of your expert, discloses details of
underlying incidents that prosecution otherwise would not learn
of; and may ward off Kumho hearing, and be effective pretrial
negotiation tool.
IV.
TRIAL DEFENSES
A.
Identifying Possible Defenses
1.
Diminished Capacity
a.
Voluntary intoxication (drugs, alcohol): United States v.
Martinez-Martinez, 369 F.3d 1076, 1083 (9th Cir. 2004) (defense
of voluntary intoxication admissible to negate specific intent mens
rea); United States v. Newman, 889 F.2d 88, 93 (6th Cir. 1985)
(evidence of intoxication can negate specific intent element)
b.
Mental Retardation: United States v. Childress, 58 F.3d
693 (D.C. Cir. 1995) (error to exclude defense evidence that
defendant was “functionally mentally retarded” in the specific
intent offense).
c.
Battered Person’s Syndrome: Dunn v. Roberts, 963 F.2d
308, 313-14 (10th Cir. 1992) (excellent discussion of relevance of
battered women ‘s syndrome in aiding and abetting offense; United
States v. Arcoren, 929 F.2d 1235 (8th Cir. 1991) (BWS relevant to
5
explain why person recanted prior testimony)
d.
Post-Traumatic Stress Syndrome: Skidmore v. Precision
Packaging Inc., 188 F.3d 606 (5th Cir. 1999) (plaintiff's expert
permitted to testify that plaintiff suffered PTSD & that symptoms
and recollections appeared genuine).
e.
Evidence of Diminished Mental Capacity not rising to
Insanity still admissible: United States v. Cameron, 907 F.2d
1051,1056, 1065 (11th Cir. 1990) (admissible notwithstanding
NGI defense).
i.
Mental health expert testimony about a mental
disorder which caused the defendant to make false,
grandiose claims. See United States v. Shay, 57 F.3d 126
(1st Cir. 1995).
ii.
Expert testimony of personality disorder causing
individual to make “false confessions,” and the importance
of testimony to dispel erroneous commonly held belief that
people don’t confess falsely. See United States v. Hall, 93
F.3d 1337 (10th Cir. 1996).
iii.
Psychiatric expert testimony about the defendant's
emotional development, history of abuse (by his wife), and
his feelings that his murder plot was an elaborate fantasy.
See United States v. Pohlot, 827 F.2d 889 (3d Cir.1987)
(evidence bearing on mens rea is admissible because it
relates to an essential element of guilt).
iv.
Error to preclude defendant’s expert witness from
testifying that the defendant had low intelligence and poor
reading skills was relevant to determine whether the
defendant's failure to provide truthful information on
firearms form was “willful,” as required by the statute. See
United States v. Hayden, 64 F.3d 126 (3d Cir.
v.
Expert testimony of school psychologists re
language difficulties. See United States v. Vallejo, 237 F.3d
1008 (9th Cir. 2001).
f.
Recent Cases Reversed Where Defendants Were Precluded
from Presenting Mental State Evidence:
6
i.
United States v. Sandoval-Mendoza, 475 F.3d 672
(9th Cir. (reversible error where district court excluded
doctor's testimony that defendant's mental condition
resulting from brain tumor made him more gullible to
entrapment).
ii.
United States v. Cohen, 510 F.3d 1114 (9th Cir.
2007) (excluding psychiatrist’s testimony about a
narcissistic personality disorder that caused defendant to
believe something was true in spite of its absurdity
reversible error)
iii.
Experts can testify about the psychological effects
of things like gang involvement, can have upon
individuals. See United States v. Hankey, 203 F.3d 1160
(9th Cir. 2001) (gang relationships/dynamic testimony
admissible to explain witness’ lies to protect gang
members); United States v. Taylor, 239 F.3d 994 (9th Cir.
2001) (testimony about dynamics of pimp/prostitute
relationship admitted to explain witness’ lack of candor).
B.
Not Guilty By Reason of Insanity
1.
18 U.S.C.§ 17 sets forth defense:
a.
Affirmative defense: It is an affirmative defense to a
prosecution under any Federal statute that, at the time of the
commission of the acts constituting the offense, the defendant, as a
result of a severe mental disease or defect, was unable to
appreciate the nature and quality or the wrongfulness of his acts.
Mental disease or defect does not otherwise constitute a defense.
b.
Burden of proof: The defendant has the burden of proving
the defense of insanity by clear and convincing evidence.
2.
Gov’t may move for own evaluation of client
a.
In NGI case, gov’t must be allowed to examine client. See
FRCP 12.2(c)(1)(B) & 18 U.S.C. § 4242(def. intending to rely on
a “defense of insanity,” “upon motion of the attorney for the
government, [court] shall order that a psychiatric or psychological
examination be conducted, and that a psychiatric or psychological
report be filed with the court, pursuant to the provisions of section
4247(b) and (c).” See 18 U.S.C. § 4242 (emphasis added).
7
b.
However, not mandatory for diminished capacity: Rule
12.2(c)(1)(B) indicates that if a defendant notices an intent to
introduce evidence of mental condition at trial, “the court may,
upon the government’s motion, order the defendant to be examined
under procedures ordered by the court.” (Emphasis added.)
c.
Should object to examination as violative of 5th & 6th am,
and unfairly coercive of confrontation rights. See United States v.
Davis, 93 F.3d 1286, 1290-91 n. 1-3 (6th Cir. 1996). FCP must
yield to constitutional strictures.
See, e.g., United States v. Miller, 267 F. Supp. 2d 104, 108 n.5 (D. Me. 2003) (“The Court
expresses no view on the constitutional legitimacy of [using at trial statements made during
an exam] even under the amended rule”); Davis, 93 F.3d at 1293 n.7 (“The constitutional
issues involved in compelled examinations regarding insanity are not entirely resolved”);
See also H.R. Rep. No. 94-247, 94th Cong., 1st Sess., 1975 (“The Committee notes that the
rule does not attempt to resolve the issue whether the court can constitutionally compel a
defendant to undergo a psychiatric examination when the defendant is unwilling to undergo
one. . . . The Committee, by its approval of subdivision (c), intends to take no stand
whatsoever on the constitutional question”).
3.
Two Central Supreme Court cases re compelled examinations:
Estelle v. Smith, 451 U.S. 454 (1981), Buchanan v. Kentucky, 483 U.S.
402 (1987).
a.
Estelle: Dr. interviewed defendant in jail for about 90
minutes, pursuant to a court-ordered competency exam. At
the capital penalty phase, government introduced evidence
of exam to show future dangerousness, an aggravating
factor for death. S. Ct held violated 5th & 6th
Amendments as the defendant had not been advised of
right to silence, nor given opportunity to consult with his
counsel about the nature and scope of the exam. Id. at
461-72.
b.
But see Buchanan, where S. Ct held that government could
introduce psychiatric examination evidence where defense was
NGI., citing dictum in Estelle:
When a defendant asserts the insanity defense and introduces supporting psychiatric
testimony, his silence may deprive the State of the only effective means it has of
controverting his proof of an issue he interjected into the case.
8
Buchanan, 483 U.S. at 423 (emphasis added). There, defendant's counsel joined in a motion
for the subject examination. See id. at 423; see also id. at 422-23 (“if a defendant requests
such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution
may rebut his presentation with evidence from reports of the examination that the defendant
requested”) (emphasis added). In addition, the evidence introduced from the report of the
examination did “not describe any statements by [the defendant] dealing with the crimes for
which he was charged.” Id. Under these circumstances, the Court found no constitutional
violation.2
c.
Post-Buchanon cases clear same principles do not apply to
diminished capacity defenses negating offense elements gov't must
prove as opposed to affirm defense. For diminished capacity, govt
can't introduce statements made during such exam as would violate
5th am. See, e.g. Davis, 93 F.3d at 1295 & n.8; see also Estelle, 451
U.S. at 466 (finding Fifth Amendment violation because state used
defendant's statements made during court-ordered examination to
prove an issue “on which the state had the burden of proof beyond a
reasonable doubt”).
3.
Parameters for Exam
a.
Under 18 U.S.C. §4247(b), (c), should be done by an
“examiner designated by the court,” (not gov’t’s designated expert)
b.
Report shall be prepared indicating: (1) the person’s history
and present symptoms; (2) description of tests used and results;
findings; (4) diagnosis and prognosis; and (5) whether the person was
insane at the time of the offense charged.
c.
Request presence of defense counsel See Miranda v. Arizona,
384 U.S. 436 (1966) (right to counsel during custodial interrogation);
United States v. Wade, 388 U.S. 218 (1967) (right to counsel’s
presence during line-up).
d.
No questions regarding the offense conduct should be
asked. See Buchanan, 483 U.S. at 423 (one of bases for admitting
exam evidence was because it did “not describe any statements by
2
To distinguish your case from Buchanan, object to exam, discuss how silence doesn’t
deprive the government of important information, (i.e., gov’t may have already examined him,
interrogated him or at least had these opportunities at arrest) and argue that didn’t “interject” his
mental health status into the case, that issue was apparent from the beginning of case when def.
exhibited x behavior or had to be taken to hospital, etc.
9
[the defendant] dealing with the crimes for which he was
charged.”); see also Davis, 93 F.3d at 1295 n.8 (“The limited
purpose of the examination concomitantly restricts the use the
government can make of it: The results of the examination can only
be used to rebut defendant’s expert evidence. Estelle teaches that a
defendant’s compelled testimony before a government expert, and
the fruits of the examination (i.e., the expert’s conclusion) cannot
be used against the defendant in the government's case in chief.”);
see also Fed. R. Crim.
(16) 12.2(c)(4)(B)(purpose for exam is only to allow gov't to
assess mental condition not to allow them to obtain further
evidence of guilt)3
B.
WHEN ARE WHICH DEFENSES AVAILABLE?
1.
Establish a theory of relevance to negate an element or
demonstrate lack of voluntariness/knowledge: where the defense can
demonstrate relevance, the exclusion of mental health evidence can
violate fifth and sixth amendment guaranties. See, e.g., Alcala v.
Woodford, 334 F.3d 862, 878-79 (9th Cir. 2003)(“the exclusion of [the
psychologist]’s testimony violated Alcala’s due process right to a
fundamentally fair trial and to present crucial witnesses in his defense)”;
see Petris v. Kuykendall, 239 F.3d 1057, 1063 (9th Cir. 2001) (finding
constitutional error where “[t]he trial court precluded petitioner from
testifying fully about her state of mind and from presenting evidence that
would have corroborated her testimony)”.
2.
Diminished Capacity Testimony can Negate Specific Intent and
Need not Rise to the Level of Insanity to be Admissible. See, e.g.,
United States v. Martinez-Martinez, 369 F.3d 1076, 1083 (9th Cir. 2004)
(defense of voluntary intoxication admissible to negate specific intent
mens rea). United States v. Cameron, 907 F.2d 1051,1056, 1065 (11th
Cir. 1990) ( “[t]he government . . . argued . . . that the Insanity Defense
Reform Act of 1984 precluded the defendant from presenting diminished
capacity evidence at trial” but the court ruled that psychological type
testimony in specific intent offenses was permitted even if it would not
satisfy the statutory defense “[b]ecause admitting psychiatric evidence to
negate mens [rea] does not constitute a defense but only negates an
3
Notably, Estelle served as the model for amendments to Rule 12, particularly with
respect to the subsequent admissibility of a defendant's statements made during an examination.
See Advisory Comm. Notes to 1983 Amendment to Rule 12.2(c).
10
element of the offense . . . . )”; Id. at 1063, n.20 ( “Psychological evidence
is relevant to mens rea only when the defendant is charged with a specific
intent crime )”; United States v. Pohlot, 827 F.2d 889, 897 (3d Cir. 1987).
3.
What About General Intent Crimes? Craft an argument that the
diminished mental capacity affected the defendant’s ability to knowingly
commit the crime and/or affected the voluntary nature of the actions. See,
e.g., Penry v. Lynaugh, 492 U.S. 302, 322 (1989) (mental retardation is
“relevant to the question of whether [the defendant] was capable of acting
‘deliberately’)” (dictum) (abrogated by statute)
4.
You Can Get an Expert to Determine the Availability of the
Defense. Ake v. Oklahoma, 470 U.S. 68 (1985) (seminal Supreme Court
case holding that Due Process requires court to give indigent defendant
access to psychiatric consultation to present defense); see id. at 83 (one of
these “basic tools” the appointment of a psychiatric expert when a
defendant makes a threshold showing that her mental condition at the time
of an offense is likely to be a “significant factor” at trial); see United States
v. Sloan, 776 F.2d 926, 929 (10th Cir.1985) (denying access to the
assistance of a psychiatric expert to perform an examination relevant to
defense issues and to assist in developing the defense would be a
deprivation of due process).
C.
PRESENTING THE DEFENSE
1.
Use FRE 702 to your advantage.
Advisory Committee notes provide that “rejection of expert testimony is
the exception rather than the rule.” Also provide that a party can use an
expert to educate the fact finder about general principles without ever
attempting to apply these principles to the specific facts of the case.
2.
Client: Does the Client have to testify to present these defenses?
Not in 9th Circuit. According to United States v. Rahm, 993 F.2d
1405 (9th Cir. 1993) (defense entitled to present entire battered
woman ‘s syndrome defense through expert)
3.
Expert witnesses: medical records/BOP records
4.
Family members/employers
5.
Use gov t witnesses
11
6.
Not limited to trial: pretrial hearings re waiver of Miranda
warnings and voluntariness of statements; consent, etc.
E.
DEFENSE OBLIGATIONS
2.
V.
Fed. R. Crim. P. 16(b)(1):
a.
At government’s request
b.
Written summary of testimony that defendant intends to use
at trial, including:
i.
Witness opinion
ii.
Bases for opinion
iii.
Reasons for opinion
iv.
Witness’ qualifications
SENTENCING ISSUES
A.
Diminished Capacity Under U.S.S.G. §5K2.13
B.
Don’t forget other 5K provisions for departure
C.
1.
§5K.2.11 Lesser Harms (allowed) from the defendant’s point of
view
2.
§5K2.12 Coercion and Duress (allowed)
3.
§5K2.19 Post-Sentencing Rehabilitative Efforts(disallowed)
4.
§5K2.20 Aberrant Behavior (allowed)
18 U.S.C. § 3553 factors
•
History and characteristics of defendant
•
Need for the sentence
•
Deterrence
12
D.
•
Protection for public
•
Provide education and medical care for defendant in most effective
manner
Post Gall and Kimbrough Sentencing Arguments
While the district court should begin all sentencing proceedings by correctly
calculating applicable Guidelines range, the Guidelines are not the only consideration
under the post- Booker, advisory Guidelines regime. The district court should consider
all the statutory factors in 18 U.S.C. § 3553(a) to determine whether they support a
requested sentence. Gall v. United States, 128 S. Ct. 586 (2007). The “overarching”
provision of the sentencing statute is to “impose a sentence sufficient, but not greater
than necessary” in light of those statutory factors. Kimbrough v. United States, 128 S. Ct.
558, 563 (2007). District courts should “consider every convicted person as an
individual and every case as a unique study in the human failings that sometimes
mitigate, sometimes magnify, the crime and the punishment to ensue.” Gall, 128 S. Ct. at
598.
Sample Cases Citing Mental Health Factor as Basis for Downward Variance:
United States v. Huckins, 529 F.3d 1312 (10th Cir. 2008) (Affirming 18-month prison
term as substantively reasonable for defendant convicted of possession of child
pornography facing guidelines range of 78 to 97 months, based, in part, on fact that
defendant was suffering from severe depression when he committed the offense); United
States v. Roach, No. 00 CR 411, 2005 WL 2035653, at *4, *8 (N.D. Ill. Aug. 22, 2005)
(imposing below-guideline-range sentence based, in part, on defendant's depression).
The “idea of just punishment[,]” under § 3553(a)(2)(A), “includes the concept of
retribution,” a concept that “requires an assessment of the relative culpability of the
offender.” Roach, 2005 WL 2035653, at *4. Impaired mental health may affect that
relative culpability and thus justify a below-the-guideline sentence. See id. at *4–*8. It
is also an important part of the offender’s personal characteristics and history—factors
that must be given weight under the post-Booker sentencing scheme. See id. at *4; 18
U.S.C. § 3553(a)(1).
13
Nancy Cowardin,
Ph.D., Educational
Diagnostics,
Whittier, California
Mental Health:
Recognizing and
Understanding Mental
Retardation, Learning
Disabilities and A.D.D.
1
Published in: Criminal Justice, Summer, 1998.
DISORGANIZED CRIME: LEARNING DISABILITY
AND THE CRIMINAL JUSTICE SYSTEM
Nancy Cowardin, Ph.D.
OVERVIEW
Between three and six percent of school-aged children are diagnosed with Learning
Disability (LD), a specific cognitive disorder which affects the learning of academic and social
information despite otherwise normal intellect. Yet, it is widely estimated that 20 to 55% of criminal
justice clients qualify as having specific to pervasive Learning Disabilities (Keilitz & Miller, 1980;
Larson, 1988; Brier, 1989; Cowardin, 1998). This finding is of great significance to defense
attorneys at the trial and sentencing phases of the criminal justice process. It also raises theoretical
and practical questions which cannot be ignored by educators or the criminal justice system.
DEFINING LEARNING DISABILITY
Learning Disability affects cognitive systems related to perception, attention, language and
the symbolization abilities required to learn to read and/or carry out mathematical calculations in
an automatic manner. Importantly, LD is not simply another term for Mental Retardation or
Attention Deficit Disorder, although all three are considered to be learning handicaps. Neither
should LD be confused with emotional disturbance. Persons with LD may function in one or more
areas at levels consistent with mental retardation, may have concurrent behavior, conduct or
emotional problems, and/or may display hyperactivity or limited attention capabilities. Still, the
disorder remains unique in specifying a significant IQ-Achievement discrepancy in academic
learning. In other words, the individual with a specific Learning Disability must display intelligence
within the "normal range", and certainly above the commonly accepted cutoff for classification as
mentally retarded, and one or more academic lags which are "significantly" (at least 1 ½ standard
deviations) below this measured ability level. Formal diagnosis should also delineate a possible basis
for the condition, e.g., a specific perceptual deficit which interferes with the intake, organization,
retrieval and/or expression of academic or social information.
Learning Disability has been considered a school-related problem in that it is first noticed
when a child fails to learn academic material and requires school-based remediation to improve
functioning. However, it is pertinent to this discussion to point out that LD also affects the learning
of social information which is needed for decision-making in nonacademic situations. Thus, it is not
surprising that Learning Disabled youth and adults in incarcerated populations represent 3 ½ to 10
times the percent found among school children.
2
CHARACTERISTICS OF THE LD OFFENDER
The Learning Disability literature posits three hypotheses for the disproportionate number
of these clients who fall into the criminal justice system: the School Failure, Differential Treatment
and Susceptibility Theories. This paper will focus on the latter, which outlines several interrelated
cognitive, language, social and personal characteristics common to LD offenders. It is believed that
these differences may be responsible for 1) poor decision-making skills and easy manipulation by
peers which lead to involvement in criminal behavior; 2) weak or missing avoidance and detection
strategies which result in easy apprehension by authorities; 3) behavior problems which lead to
harsher treatment within the justice system; and 4) inability to learn experientially in order to
prevent recidivism.
Cognitive and Developmental Lags. The first characteristic which has been linked to criminal
involvement and increased recidivism in the LD population is lower intelligence. Here, offender
populations average a 7 to 9 point IQ deficit despite controls for race, age, gender, and
socioeconomic status. This IQ discrepancy mirrors that of the LD population, which, although
technically normal, falls at the lower end of this test band. Repeat offenders average a lower IQ than
nonrecidivists, which helps to explain the overrepresentation of LD among "third-strike" offenders.
Studies have shown that most Learning Disabled teenagers have not developed cognitively
to the same levels as their nondisabled peers. This is most observable during information processing
tasks requiring an organized sequence of cognitive action which includes intake, organization,
retrieval and expression of specific information. Here, normal teens employ mature, language-based
strategies on an automatic basis. LD teens tend to function at a two to four year deficit in this regard,
displaying inconsistent strategy use if, indeed, they use them at all. This inconsistent pattern of
mental organization and performance can persist into adult life for these clients, greatly jeopardizing
the possibility that they can keep up with normal peers. Instead, they tend to become overwhelmed
with task variables during complex activities. Here, we often see the LD client simply "shutting
down" all processing, preferring instead to take direction from others.
Roy and two younger teens dabbled in satanic worship as a means of increasing the
popularity of their rock band. Under the influence of drugs, Roy chanced upon these
youngsters on the evening they planned their second attempt to murder a female
classmate. Skeptical, he accompanied them to a remote area and stood "frozen" as
the two implemented their plan. He could neither prevent nor assist with the crime
due to stimulus overload. Eventually, on direct instruction from his friends, Roy
provided half-hearted and minimal assistance. After several months of extended
"processing time", Roy turned himself in to authorities.
Language Immaturity. Much has been written about language processing differences in LD
clients. Here, they have been characterized as deficient in the use of internal language, the "private
speech" needed to mediate one's own actions. This deficiency can affect social awareness, personal
organization and self control, all linked to delinquent behavior and criminal apprehension. We have
found it typical for our LD clients to employ ineffective nonverbal imagery to make choices and
3
adaptive decisions once an action is underway. Processing information in this less mature, random
manner greatly increases the likelihood of errors of omission, where not all information is received,
and commission, where inaccurate information can result in behavioral confusion.
Language immaturity also affects ability to organize and monitor input on a continuing basis.
Thus, LD clients often appear disorganized, relying instead on impulse, guesswork and luck. They
often enter a crime situation with a "half-plan", that is, a poorly thought out image of a desired
outcome, but have not conceptualized the small steps for actually reaching this goal. Then, when the
situation escalates, the individual does not have sufficient internal language to correct his original
plan through self-coaching.
John is a severely Learning Disabled man who faced the death penalty in a Special
Circumstance murder case. Using keys taken from his brother's repair truck, he rode
his bicycle to a private home during the work day with the intention of burglary. He
soon became lost in placing odd objects, many of which were not the least valuable,
in plastic bags which he piled by the kitchen door. This activity took several hours,
during which he misplaced his pager somewhere in the house. While he frantically
looked for it, the female tenant arrived home from work and found her home in
disarray. Her murder apparently took place when John could not exit her home
without a physical confrontation. Several personal items, including the victim's
watch and harmonica, were found in John's backpack when he was apprehended a
few days later.
Finally, internal language is a necessary ingredient for inducing and maintaining self-control
in escalating social situations. Here, LD clients need to be taught to employ self-talk to curb
aggressive impulses and effect more positive outcomes. People who do not routinely think through
possible consequences of actions using private speech are more likely to act first, then encounter and
deal with the fallout later. One lecturer (featured in PBS Video, 1989) has described this typical LD
behavior as "Ready...Fire...Aim!" Thus, decision-making and self-monitoring do not appear to be
language-based functions in LD offenders. Instead, they seem to make decisions and adaptations in
a random manner, and are typically quite surprised when things go wrong.
Distorted Social Perception. Social perception is greatly influenced by the information processing
abilities discussed above. Here, we have seen LD individuals who miscue from people and the
environment due to impaired role-taking ability, poor conversation and interrogation skills, and
misinterpreting social expressions and gestures. Deficits in social awareness can result in reduced
ability to grasp the precariousness of one's actions or the magnitude of the predicament once
apprehended. These individuals may also be less able to avoid apprehension because social "tip-off"
cues are not being received. They are often left literally "holding the bag" by peers who, sensing
danger, have fled the scene.
Gilbert was invited by his nondisabled friends to "cruise" the Coast Highway on a
Friday night. The boys were dismayed to find metered parking along the highway,
4
and this launched a lively discussion about just how much money is collected in the
average parking meter. Gilbert actively assisted in a group effort to remove the
meter from the pole, oblivious to passersby who were witnessing and discussing the
boys' mischievous behavior. He was the only youth remaining at the scene, parking
meter in hand, when the police car pulled up.
Impaired social perception and problem-solving also affects the personal organization of LD
individuals, and helps account for the high degree of what we have termed, "disorganized crime"
in this population. This sort of mental disorganization is magnified greatly once action is underway
and the LD individual cannot generate adaptive solutions to encountered problems. This type of
client is often seen forging blindly ahead with the original plan (or half-plan) despite growing
evidence which would lead a normal person to abort the endeavor completely. Social misperception
in our client group has led to almost comical blunders in the Entry, Escalation and Exit phases of
criminal activity. Here, as examples, one of our clients donned a ski mask after interacting with his
victims for over ten minutes undisguised; another allowed a youthful McDonald's clerk to call his
manager at home to get permission to hand over the money in the cash register; and several of our
clients have left personal items such as wallets, notebooks and pagers at crime scenes. Thus, we see
social perception as a key variable which, along with impaired internal language, almost dooms LD
would-be criminals to failure without external direction.
Attention Disorders. The Learning Disability literature (Krupski, 1981) points to attention
difficulties which increase significantly when LD children are presented with cognitive
(nonautomatic) tasks. Here, we see children who cannot select the proper cue from a stimulus laden
background and/or come to attention upon demand. We also find those who are highly distractible
and/or cannot sustain attention over the long term at school, though well able to attend to video
games for hours at a time at home. Thus, issues of inattention and distractibility are related to
volition, or choice, as well as to the precise type of task being required. Accordingly, the federal
definition of Attention Deficit Disorder which specifies chronic "limited alertness" may not be
entirely descriptive of the issue in LD populations. On the contrary, we often notice that attention
is not lacking, but aimed equally at all stimuli in the environment, interfering with task "vigilance".
This client does not display an attention deficit, but a condition of cognitive overload which greatly
interferes with attention in academic and social settings.
Attention lapses have been identified as one reason why our client group is so amenable to
outside influence and manipulation by peers. Here, we tend to see clients with poorly developed
internal vigilance, who are more than eager to release control to others. It is not coincidence that
many youth gangs admit one or more members who they perceive will follow all directions without
question. These members, often tagged "Loco" or "Clown", are useful as "go-fors" during delinquent
activity. They are also typically the ones used as scapegoats or characterized as "ring leaders" by
other gang members during plea bargaining.
Finally, response commissions (failure to inhibit oneself consistently) during stimulus
overload are at the heart of crimes of impulsivity. Here, we often see "trigger-happy" reactions which
seem out of character to both the client's personality and the situation at hand. This was clearly
5
demonstrated by one of our clients who fired shots in the air as his would-be attackers were in the
process of retreating. This action only served to reactivate a conflict which would have otherwise
subsided without harm to either party. We shudder to think how many preventable crimes have
occurred where handguns were paired with impulsivity.
Chris and a friend collaborated on an ATM robbery. Here, the friend offered to wait
in and drive the get-away vehicle if Chris would carry out the actual robbery at
gunpoint. When a patron approached the ATM machine, Chris stood nearby with a
hidden gun, waiting for the right moment to demand money. But instead of a
withdrawal, the man made a deposit, forcing Chris to come up with an adaptive
solution. Although he had no cigarettes, Chris asked the man for a match and
followed him to his car to locate one. At this point, Chris impulsively displayed the
gun even though there was no cash available. The man lunged forward to grab it
away and the gun fired, killing him. Chris's friend was now nowhere in sight, so he
was forced to take the man's car in order to flee the scene.
Social and Emotional Deficits. Teachers of Learning Disabled children attest to the fact that
emotions often run high in their classrooms. This characteristic volatility is further compounded by
a degree of emotional lability, or mood swings in the disability group. Thus, we see inconsistent and
dramatic emotional reactions which appear inappropriate to the situation at hand. Some of this
behavioral display is merely compensatory in nature, that is, an attempt to mask social strategy
failure. It is understandable that these students have developed a fair amount of frustration due to
poor academic skills and social failure, thus become angered quickly. We are reminded of the LD
youngster whose teacher announced a "pop" spelling quiz in ten minutes. His reaction was to kick
a fellow student, thereby breaking a cardinal classroom rule. In this way, he manipulated a trip to
the office in lieu of taking the quiz and risking social failure
While normal teens may be able to talk or charm their way out of a disciplinary situation,
it is not uncommon to see the LD youth become sullen, defiant or belligerent when confronted by
an authority figure. It is not unusual to find that the LD youngster is the only one of his peer group
to be arrested for a minor offense. This may occur in part due to poor detection avoidance strategies
(i.e., he's the only one caught), but is also the result of the abrasive interpersonal skills discussed
above. It is not surprising that 31% of the Learning Disabled and 57% of the Emotionally Disturbed
have experienced arrest by the time they are five years out of school. Similar inappropriate behavior
and attitudes may also be displayed while in the courtroom or in meetings with the Probation
Officer, further insuring that the LD youth will receive harsher treatment in the system.
Let's return to Gilbert left alone holding the parking meter as the police drove up.
Instead of quickly concocting a believable story ("Gee, Officer, this came off the
pole. Good thing you're here!"), the 17 year old became sullen and defiant. He
refused to answer questions or offer any plausible excuse. He also refused to
6
incriminate his friends, thus was taken to the police station. Gilbert's parents were
called to come and pick up their son. By this time, it was 2:00 in the morning.
DIFFERENTIAL TREATMENT
Disability advocates have documented numerous instances where Learning Disabled clients
received more punitive treatment and/or extended periods of incarceration or probation. For
example, Alberto, a client with pervasive disabilities, was told by the judge that he would not be
released from probation until he obtained a high school diploma. Our assessment determined that
this adult client functioned at first and second grade levels in spelling and reading, and demonstrated
specific processing deficits which scored as low as the 5 year age level. Habitually trying to hide his
severe disabilities, he had not sought previous academic remediation. Through our efforts, the Court
received education regarding Alberto's disabilities. We also intervened with his adult school in order
to best meet the client's unique educational needs.
We have encountered judicial ignorance, especially critical in juvenile cases, concerning
Learning Disability. Here, judges routinely take school reports of failing grades and/or behavior
referrals at face value in making major decisions related to client disposition. Yet, they rarely require
school officials to identify underlying causation for poor performance. Here, that one additional step
could result in disability identification and eventual remediation for a Learning Disabled youngster.
Thus, while the Differential Treatment Theory may not adequately explain why so many LD youth
become offenders, it does help to explain their entrapment in a system which does not understand
or respond to their unique learning needs.
INCARCERATION ISSUES
When a Learning Disabled defendant faces incarceration, the defense attorney is in an
excellent position to assume an advocacy role in alerting prison officials of the client's condition.
It is suggested that all diagnostic reports be forwarded to the Reception Center as a means of alerting
staff to the presence of a disability. Making sure there is disability documentation in an inmate's file
will eliminate the burden of his having to prove this status to receive fair accommodation as
mandated by the Americans with Disabilities Act (ADA). ADA accommodation impacts a variety
of prison programs and activities, including vocational training, hearings, and other aspects of daily
prison life. Additionally, under the federal IDEA law (Individuals with Disabilities education Act,
formerly PL 94-142), prisons have a legal obligation to provide continued special education services
to inmates under 22 years of age who enter the system with active remedial education contracts
(Individualized Educational Plans, or IEPs).
Failure to Provide Educational Accommodation
Prisons typically provide basic remedial education courses (ABE classes) for inmates who
have not attained high school diplomas and test below the 7th grade level. In the California prison
7
system, ABE classes cannot be defined as special education in that 98% of them are not staffed by
trained special educators, they do not conduct standardized individual pre/post assessments, they
do not adhere to a formal team-generated Individualized Educational Plan and they do not provide
the low pupil:teacher ratio needed to produce maximum academic gains in Learning Disabled
students. Thus, at best, ABE offerings duplicate the same remediation efforts which were
unsuccessful when the LD inmate was in school. Yet, other than these basic remedial offerings, there
are no special education provisions in most prison programs.
Failure to Provide Vocational Accommodation
We found in the California prison system that only inmates who score above a sixth grade
reading level are enrolled in vocational training programs. In this way, LD inmates, as well as others
with low academic skills, are denied all but the most menial jobs, and are rarely able to obtain any
sort of paid employment within the prison system. We have concluded that vocational offerings in
most prisons exclude LD inmates based on entrance criteria (literacy attainment) which are beyond
their capabilities. The problem is compounded by the fact that LD inmates cannot improve their
academic skills without special education, and therefore remain unable to meet entrance
requirements for the vocational training program. The outcome is that LD inmates who may be
capable of doing the manual work for which a program trains and/or who have worked in such a
field prior to incarceration are effectively barred from vocational participation.
Failure to Provide Accommodation in Daily Prison Life
Inmates with LD are often unable to fully participate in the daily activities which are part of
prison life. For example, several LD inmates have complained that existing library materials are not
appropriate for their low reading levels. Library personnel are neither consistently available nor
trained to assist illiterate inmates in accessing essential library materials such as taped novels and
self-instruction workbooks.
Inability to read posted notices has resulted in punitive and even life threatening
circumstances for several LD inmates whom we encountered. Yet, the posting of important
information in printed form remains the primary, and sometimes only method of communication
between inmates and prison officials. Asking other inmates for help may be viewed as a sign of
weakness, thereby making an individual more vulnerable to predators. Neither is asking prison
officials for reading assistance a workable alternative. In this scenario, the LD inmate is rendered
more dependent on staff than are his nondisabled peers. Such requests may be viewed as "pestering"
a staff member, which can result in retaliation, ridicule or even disciplinary action.
Filling out prison forms is a process which also requires assistance for most LD inmates.
Requests for certain supplies and medical appointments in the prison setting typically require the
completion of a written form. Here, the LD inmate's only alternative, enlisting an inmate helper, can
result in inaccurate or erroneous information.
8
Finally, reading personal and legal mail is yet another obstacle which faces LD inmates in
daily prison life. This main form of communication with the free world, including legal counsel, is
often denied to LD and other prisoners who are illiterate. These inmates have two options: 1) to ask
for staff assistance in reading or responding to private or otherwise sensitive material, or 2) to
procure help from peers who may have poor skills themselves or may take advantage of their
dependence. Neither option is an appropriate accommodation under the Americans with Disabilities
Act.
Failure to Provide Accommodation at Hearings
Most procedures associated with hearings, including such tasks as filling out hearing
requests, appeal forms, and reading/ responding to disciplinary reports, depend on an inmate's ability
to read and write. All inmates must participate in a number of hearings during their incarceration.
Classification hearings concern the inmate's housing and other programming within the institution.
Disciplinary hearings adjudicate rules violations which can result in loss of privileges/credits or even
placement in security. Finally, parole hearings determine whether an inmate has attained parole
and/or provide recommendations to help him increase his chances of earning parole in the future.
These hearings have important implications for prison life, thus it is imperative that all inmates,
including the Learning Disabled, fully comprehend and participate in the proceedings. Apart from
the problems LD prisoners may have with written text, those with language and processing disorders
may require assistance in comprehending the verbal content of these hearings. Accommodations
may also be needed in reading and translating written notice of charges against them, conducting
investigation or file review in preparation for a hearing, rewording abstract language at hearings,
formulating written responses to charges, and filing appeals.
Parole hearings often provide LD inmates with a final hurdle by requiring educational
improvement as a condition for earning parole. For the LD inmate, it is unrealistic to require
educational progress without offering special education as a means of obtaining this outcome. Far
too often, parole commissioners neither understand LD nor have been provided any sort of training
toward this end. As a result, they are not able to make realistic or appropriate recommendations for
LD inmates.
CONCLUSION
This paper has attempted to define and explain the link between Learning Disability and
involvement in the criminal justice system. An overwhelming number of these youth and adults are
currently in custody where they receive little or no remediation or accommodation for their various
9
disabilities. With the exception of some juvenile clients with current disability status, it has been our
finding that the justice system neither detects, understands, nor provides for cognitive differences
at arrest, adjudication or disposition unless assisted or ordered to do so.
Finally, incarceration is likely to have a more devastating impact on criminal offenders with
Learning Disability than on nondisabled inmates. This is so because accommodations needed by
LD inmates for responding to the daily challenges of prison life have not been implemented by most
correctional systems. Until necessary ADA accommodations are implemented for LD offenders, the
justice system would do well to look for more appropriate sentencing alternatives whenever
possible.
DETERMINING THE NEED FOR LD ASSESSMENT
Learning Disability assessment can yield information which is especially valuable to
attorneys in the presentencing and sentencing stages of representation. Following is a symptom
checklist which may be helpful in determining whether to refer a client for LD assessment.
Attorneys are urged to select a qualified diagnostician to conduct a complete, multidimensional
assessment and prepare a detailed report of findings. The report should describe the disorder in
functional terms and yield cognitive levels in several developmental areas including intelligence,
academic skills, information processing, language, and social development. An educational
psychologist/diagnostician or special education learning specialist with doctoral training is
recommended for this task.
Nancy Cowardin, Ph.D.
EDUCATIONAL DIAGNOSTICS
Post Office Box 4006
Whittier, California 90607-4006
(562) 789-9922
[email protected]
LEARNING DISABILITY SYMPTOM CHECKLIST
Nancy Cowardin, Ph.D.
ACADEMIC DEFICITS:
10
1.
2.
3.
4.
5.
6.
Poor grades despite adequate school attendance
Reads or writes at childish levels
History of special education class enrollment
Low yearly achievement test scores in school cum file
Spiky profile (both high and low skills)
Lacks general age-appropriate information
ATTENTION DEFICITS:
7.
Exhibits physical "overflow" movements while working
(noise-making, rocking, tapping, etc.)
8.
Recall shows "hit and miss" attending to content
Can be easily distracted from task
9.
10. Needs redirection or prompting to complete tasks
SPEECH-LANGUAGE DEFICITS:
11. Needs restatement, simplification or repetition of questions and directions
12. Talks a lot but makes little sense
13. Missing or incorrect labels for nouns/verbs
14. Speech/articulation problems
15. Generally hard to communicate with
PHYSICAL DISABILITY CLUES:
16. History of maternal drugs, birth injury or head trauma
17. Family member has similar disabilities
ADAPTIVE SKILL DEFICITS:
18. Problems communicating information to others
19. Behaves immaturely and/or has younger friends
20. Acts randomly without considering possible consequences
21. Cannot apply academic skills to daily living
SOCIAL-BEHAVIORAL DEFICITS:
22. Impulsivity (makes fast, bad decisions)
23. No plan, half-plan, or abandons plan once action is underway
24. Emotional mood swings
25. Needs outside direction in a crisis
26. Odd, immature, disorganized or poorly accepted by others
27. Used by peers as scapegoat or "go-for"
28. Easily led, bribed or cajoled to self-incriminate
29. Lacks confidence in own decision-making
30. Misinterprets social gestures, facial expressions or environmental cues
REFERENCES
Brier, Norman (1989). The relationship between Learning Disability and delinquency: A review and
reappraisal, Journal of Learning Disabilities, 22(9), pp. 546-553.
11
Cowardin, Nancy (in press). Punishing Disabilities. Washington, DC: The Sentencing Project.
Keilitz, I. and Miller, S. (1980). Handicapped adolescents and young adults in the justice system,
Exceptional Education Quarterly, 1(2).
Krupski, Antoinette (1981). An interactional approach to the study of attention problems in children
with learning handicaps, Exceptional education Quarterly, 2(3), pp. 1-11.
Larson, Katherine A. (1988). A research review and alternative hypothesis explaining the link
between Learning Disability and delinquency, Journal of Learning Disabilities, 21, pp. 357-363.
PBS Video (1989). "Understanding Learning Disabilities: How Difficult Can This Be?", Public
Broadcasting Service.
This article was subsequently published as:
Cowardin, Nancy (1998). Disorganized Crime: Learning Disability and the criminal justice system,
Criminal Justice, 13 (2), pp. 11-16.
ADD On Trial: “Winning” is Still Losing
Nancy Cowardin, Ph.D.
EDUCATIONAL DIAGNOSTICS, Whittier, California
January, 2000
Over the past ten years, cases of diagnosed Attention Deficit Hyperactivity Disorder
(ADHD) and related information processing deficits appear to have increased in frequency, not only
in the general population, but among criminal defendants. Accordingly, criminal justice
professionals now require additional information to recognize and accommodate these cognitive
differences and to better understand how disorders of attention impact human behavior. The
following case studies represent three young men with similar attentional disorders, but different
advocacy needs with courts, juries, and/or corrections. Each was provided extensive services,
including psychoeducational assessment, case analysis, and/or expert testimony, in hopes of
promoting fairness for all clients through a more enlightened criminal justice system.
Personalizing ADD/ADHD: Case Studies
Chris is a 20 year old defendant with documented behavioral issues since
toddlerhood, and subsequent diagnosis of ADHD in early elementary school. No
long-term medical solution was ever put into effect due to the family’s instability.
Here, after being abandoned by his parents as a preschooler and again by his
grandparents at the age of 14, Chris was placed in a succession of 21 foster care
and institutional settings. While in placement, the youth’s maladaptive behavior
escalated to the point that he accumulated six arrest petitions and was remanded
to the California Youth Authority by the age of 17. Now a young adult, Chris had
violated a court restraining order and found himself in the County Jail, where he
quickly established a negative reputation. On the day of his recent assessment, he
had just been released from a month of solitary confinement for a minor
disciplinary infraction. Jailers characterized Chris as a troublemaker who would
periodically enter and exit the correctional system“like a revolving door”.
Testing for this client revealed a classic and ongoing ADHD condition characterized by
impulsivity, response inconsistency, and distractiblity. Although a young adult, he still lacked selfcontrol strategies despite numerous and varied social interventions. This was probably because
parents and schools had “dropped the ball” when it came to appropriate medical intervention; and
former hospital placements, as well as his present correctional setting, had chosen to deal with him
by prescribing tranquilizer medications which rendered him stuporous much of the time. As a result,
Chris was never adequately tested to obtain an accurate representation of his learning profile and
complex attentional issues. Records contain no indication that any educational or therapeutic
placement attempted to 1) assist in medical management of his ADHD condition, 2) teach cognitive
behavior modification (CBM) techniques designed to empower him to direct and monitor his own
actions, or 3) structure the environment to accommodate his escalating, disability-based behavior
problems. In one of its final reports related to the “Chris problem”, his school district provided only
sparse and rather pathetic recommendations including “consideration” of programs in the “least
ADHD on Trial
Page 2
restrictive environment”, nebulous “other interventions” to assist with behavior and growing
emotional problems, and a suggestion to his caregivers: “...check on the location of his glasses.”
What followed was a total abdication of responsibility to the local Mental Health Department which
responded by arranging the string of out-of-home placements mentioned above. While in these
court-ordered placements, Chris was subjected to countless rounds of group and individual therapy,
tranquilizer medications, medical tests for defective thyroid function (which proved
inconsequential), shortened day assignments, and eventually, classroom suspension, all of which
failed to effect positive change. At the time of the March, 1999 evaluation arranged by his attorney,
Chris had never participated in any court, school, correctional, or social program which considered
his ADHD in both the diagnostic and prescriptive phases of assessment.
Now 17, Andrew was retried earlier this year for the murder of his sister which
occurred when the youth was only 14½ year of age. The youngster had a longstanding diagnosis of ADHD and had been taking Ritalin prior to a recent relocation
to live with his father’s “new family” in Virginia. He entered his new home on shaky
ground, having been banished by his natural mother due to escalating behavior
problems. Although drug therapy in his former school setting was successful,
Andrew’s father never refilled the prescription, thus the youth began high school in
his new location without this support. Within two weeks, he received a suspension
notice for a rules violation, and arrived home early to nervously await his fate. At
this time, the youngster accessed a loaded shotgun from his father’s bedroom closet
and took it to his room. Three gunshots were fired that afternoon, the first of which
surprised Andrew as it went through his mattress and into the floor below. The
additional shots also appear to be the result of a succession of random and clumsy
movements which are typical of children with ADHD: one of these went through his
bedroom ceiling while the other resulted in his sister’s death. This youngster was
tried as an adult, found guilty of purposeful murder, and sentenced to 17 years in a
state prison for adults. Were it not for his grandparents’ work to reveal several
instances of juror bias, this verdict would not have been overturned. His attention
deficit condition was raised as a mitigating factor for the first time during the 1999
appeal of his murder conviction.
Advocacy for this client included a thorough review of school and medical records, as well
as the inservice education of Andrew’s appeal attorneys to insure that they were familiar with all
aspects of this disability condition. As such, his report focused on defining attentional deficits like
ADD/ADHD as “chronic limited alertness” and associating them with other medical disorders which
may fall under the broader heading, Physical Handicaps (e.g., Other Health Impairments). Childhood
indicators of the condition were reviewed as far back as his preschool years, where the boy was
described as able to “destroy a room faster than you could believe!” It was suggested that medical
attention for this condition should have been sought well prior to junior high, when failure
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behaviors and attitudes had become well established in this youngster. Next, proper assessment of
information processing, as well as variables of attention was outlined. Here, discussion focused on
specific analysis of “breakdowns” which may occur at information intake, organization and storage,
retrieval, and/or expression. It was further observed that ADD tends to interfere with initial intake,
and that this may manifest throughout the processing chain. In other words, not paying attention at
intake is likely to impact organization, storage, retrieval, and expression via “cascade-effect”.
Specific variables of attention, as measured by the Test of Variables of Attention* (TOVA), were
also defined as follows:
S
Omissions of attention are distractions and/or lapses in vigilance over the length of
a task. Omissions tend to produce a pattern of cycling attention which, in turn, results
in spotty knowledge, incomplete intake of directions and/or information, and partial
learning of academic content. Omissions are the most recognized attentional deficits,
tending to occur in younger and/or lower IQ test subjects.
S
Commissions are false positives associated with impulsive and/or random behavior.
This dimension describes an individual’s ability to inhibit himself and his physical
actions. High Commissions usually involve random, purposeless, and/or clumsy
reactions which seem outside of the physical control of the test subject.
S
Reaction Time is simply the amount of time it takes for a person to formulate and
produce responses to desired stimuli. Reaction Time is measured over task conditions
which change from low-stimulus (infrequent) to high-stimulus ( very frequent)
conditions.
S
Variability refers to the consistency of reaction time and intensity across test
conditions. As such, this measure helps explain changes in frequency of Omissions
and Commissions in test subjects, as well as functional variations in performance
over time.
Since no TOVA results were obtainable for this client, this analysis relied on statements of
his parents, teachers, and medical professionals which documented and described his ADHD
condition. For example, his grandfather described Andrew as inattentive (Inattention = high
Omission rate), stating that he was “fine for a few minutes... then it was like talking to a wall.”
Reports from school personnel also described Omission errors related to distractibility which
interfered with task vigilance and concentration over time. The youngster’s Commission errors were
documented as random or clumsy “overflow” movements associated with spatial and timing
misjudgments, as well as failure to consistently envision probable consequences of his actions.
* For additional TOVA information, contact Universal Attention Disorders at 1-800- PAY-ATTN.
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Individuals with these impairments often require extended time to think through their impulsive
actions, make sense of them, then plan and initiate remedial actions. Finally, evidence was reviewed
which indicated that Andrew’s responses were marked by lapses in both Response Time and
Variability. Review of TOVA variables contributed information that became important in making
sense of the boy’s seemingly odd and undirected post-crime behaviors. These included taking his
sister’s body into the bathroom (to access first aid?); his preoccupation with cleaning the carpet as
well as completing several assigned household chores (thought to promote internal organization);
and his eventual, though almost completely forgotten, flight to a nearby wooded area where he
remained cold, wet, and without food until reappearing back at home the next afternoon.
Along with the information processing analysis, TOVA discussion helped to depict the
possibility that 14 year old Andrew could not mentally accommodate the horrible results of random
and impulsive actions that remained outside of his physical control. Much of the shocking scene that
followed may not have been fully encoded, leaving informational gaps at intake. It is also likely that
the youngster’s attention may have cycled as he tried to organize and store information about the
shooting, thus rendering the final information processing phase, retrieval/expression, clearly
dysfunctional during the ensuing videotaped police interview. In fact, the interviewing officer did
a superb job using probe questioning to “jog” the youth’s memory of facts and details related to the
previous afternoon’s events. However, due to the processing and Omission errors noted above, it
remains possible that some details and information derived from their reciprocal conversation were
mere conjecture on Andrew’s part, i.e., “fillers” of informational gaps which would bring some
modicum of internal closure for the boy while at the same time, pleasing the officer. Here,
regardless of the interviewer’s dedication to duty, we must question his decision to interview a
distraught 14 year old with a known history of attentional deficits, without an advocate present to
facilitate and monitor accurate two-way communication. The interview also took place without the
presence of legal counsel.
A final area which required discussion in advocating for Andrew concerned normal vs.
atypical adolescent development. Here, attorneys were familiarized with the development of
cognitive strategies which typical teens utilize to assist information processing. These “memory
tricks” include strategies such as “verbal rehearsal” where an individual repeats information
sequences to himself until verbal expression is required, “chunking” parts of the whole for easier
initial encoding, and “clustering” like pieces of information together for easier storage and retrieval.
None of these techniques are actually taught to us, but appear to develop naturally in typical 12 to
14 year old children. Importantly, research with adolescents who have cognitive deficits such as
ADHD indicates that they may require an additional two or more years to begin developing such
strategies, take longer to stabilize them, then tend to discard them even though they may prove
effective for accessing certain desirable outcomes.
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Thus, it is probable that at only 14 years of age, Andrew had not achieved the level of
cognitive development we might expect simply looking at his outward presentation. Certainly,
cognitive immaturity affected his actions related to and following the shooting incident, as well as
during the subsequent police interrogation. In this particular interview, the officer knew of Andrew’s
ADHD condition, but took no action to call an appropriate advocate for the youth. What he did
instead was to offer friendship and understanding (“You’re the only boy, huh?... That’s got to be
kind of tough”), apply many prompts to recall the previous day’s events (“Well, what’s the next
thing you remember after you hung up the phone with her... Then what did you do?”), and provide
discrete pieces of information to fill in memory gaps (“Well, when she was in your room yesterday...
were the two of you talking in there?”; “What did you have to clean up - did you drop something?”)
These techniques were highly effective in getting the boy to talk for hours; however, knowing the
nature of Omission and Commission errors inherent in ADHD as a syndrome, the accuracy of his
recall and statements remains questionable even today.
Carl faced the death penalty having been found guilty of the robbery-murder of a
convenience store cashier. As the lone assailant, all of his actions were video- and/or
audiotaped via store surveillance equipment. Here, the 21 year old ADHD client can
be seen entering the stimulus-laden environment and approaching the counter where
he attempts to purchase cigarettes. He alternately stares at the counter and at
another uncluttered surface, presumably in order to gather his wits and proceed
with the robbery. He then orders the cashier onto the floor, face down, while he
empties money from the register. As Carl steps behind the counter for this purpose,
he is out of camera range, but can be clearly heard demanding time and time again
that the clerk remain still and lie face down on the floor. After several minutes of
repeated pleas of this sort, two shots are heard, followed by Carl’s final comment
before fleeing: “Stupid m— f—.”
On the surface, Carl’s case looked like a lost cause, even from the most optimistic defense
attorney’s perspective. This attractive, biracial young man had been a basketball star throughout his
school career and was never enrolled in special education. Additionally, although parents, teachers,
and coaches recalled many behaviors consistent with ADHD, the family had refused medical
intervention in the form of drug therapy for the condition. His court-ordered cognitive assessment
revealed an IQ in roughly the normal range, and only borderline Learning Disability qualification
in a few academic splinter skills. However, his ADHD condition was clearly observable in the
various jail settings accessed for assessment purposes. For example, only minimal impulsivity was
observed when Carl was tested in a private cubicle facing a blank wall on Day 1; but he fell apart
completely when tested at an interview “counter” in the main attorney room on Day 2. Here, he was
observed to scatter his focus to any and all external stimuli, with particular difficulties whenever any
form of visual distraction occurred. Since he was facing the entry door where there was much inmate
and guard activity, he remained virtually untestable in this highly charged setting. Accordingly, Day
3 was arranged in a private office inside the medical unit of the jail where only
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minimal outside distractors could impact his concentration. Still, he was observed to monitor the
most minimal visual stimuli outside the room’s small window, requiring redirection to task
following any such occurrence. Carl also required external “transitioning” across tasks, following
breaks, and even where significant body position changes occurred. Finally, when a gnat entered the
test area, he could not focus on tasks until it was eliminated. With distractibility of this magnitude,
TOVA assessment became imperative for this client.
The TOVA print-out not only verified an ADHD diagnosis, but analysis further suggested
that neurological assessment was in order due to his high Omissions rate (Standard Score <25).
Reaction Time was deviant due to its slowness (SS of 28), while Response Variability was high (SS
<25). In addition, information processing testing verified extreme variability and performance
cycling in the face of not only visual, but also auditory distractors. Here, distractibility occurred
whenever any extraneous noise occurred, such as a door closing or distant conversation. In some
cases, Carl could not recall any information just presented to him following such an occurrence, so
the entire test item was repeated. Thus, the information processing age scores obtained in this
assessment (12 and 13 years), were assisted by repetitions which would not be likely to occur in
everyday life. Carl’s cognitive deficit profile helped to explain his initial confusion upon entering
the high stimulus store environment and his need to “recover” cognitively by limiting visual
distractors. It also regarded his pleading demands of the noncompliant victim, and his final
impulsive decision to shoot him. Carl’s final recorded statement appeared to rebuke the clerk for his
“stupid” decision to defy orders: he was found lying face up, more then ten feet away from the initial
counter location.
Carl’s family, friends, and particularly his basketball coach recalled consistent observations
of attentional issues which interfered with performance consistency. For example, his coach recalled
numerous instances where he would set up a play during time-out and send the team back on the
court, only to find Carl out of position or otherwise unprepared to do his part. In these instances,
teammates covered for him until the information “kicked in”. Both the coach and teammates came
to expect that Carl “would have to go through and screw it up once” before he could transition to
the new play. Other episodes of distractibility during game time were handled simply by calling
Carl’s name or “grabbing his arm” to prompt and direct attention. The coach’s recollection that
“something” interfered with continuity and decision-making in this player was interesting in light
of the findings of the current assessment. Data derived from these psychoeducational tests helped
to quantify and qualify that nebulous “something” precisely and to explain it to the penalty phase
jury. Due to this and other advocacy on behalf of the client and his family, Carl was granted life
without parole when the jury “hung” 8 to 4 in opposing the death penalty.
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Trial Advocacy: What Courts Need to Know
The three cases presented above represent differential advocacy needs in the courtroom, yet
all required explaining ADD/ADHD to those in decision-making positions. In Chris’ case,
variability and impulsivity related to his ADD condition was finally explained, with information
offered that would affect future placement and treatment options. The Court in this matter needed
to understand what can result when severe ADHD goes medically untreated in childhood and
continues to be ignored through adolescence and into adulthood. Like many untreated children,
Chris never developed self-monitoring strategies with which to ameliorate escalating problems
during task vigilance. For example, during the low stimulus TOVA condition, he attempted
conversation with the Examiner which interfered only minimally with consistency during task
vigilance. However, once the high stimulus condition began, his attempts at conversation became
more problematic. Unable to look away from the computer screen for fear of missing a target, he
continued to ask questions and make off-hand comments, but these were far out-numbered by selfregulating remarks (“Caught myself again!”; “I don’t know why I pushed the button -- I didn’t even
want to!”) Many times, his poorly timed comments were followed almost immediately by a near
miss (“Oh shoot -- I almost missed it!”) but this lesson appeared to be lost on Chris. Thus, failure
to teach self-regulating strategies and behavior to this client as a child have resulted in an immature
and ineffective adult style which requires and can now benefit from medical intervention. If Chris’
brush with the criminal justice system accomplishes this outcome, then perhaps the “revolving door”
prediction can be averted.
Andrew’s case presented an opportunity to educate the Court and jury about ADD/ADHD
and other developmental issues related to very young offenders. This client had much to gain
through such advocacy, and could have walked away a free teenager if his sister’s death were ruled
accidental. In that the 14 year old Andrew was no longer available for assessment or questioning,
a written analysis presented to the Court the possibility that the shooting could have resulted from
clumsy, random, and/or unplanned actions which were disability-based. It was further proposed that
unraveling Andrew’s intent presented a virtual impossibility, even for professionals with much
expertise in ADD/ADHD and related cognitive disorders, and remained well outside the expertise
of the layperson. Unfortunately, the judge in this matter refused to allow funding or the time
extension needed to present such testimony.
“Winning” LWOPP
Carl’s case was successful from a trial attorney’s perspective, in that he got Life WithOut
the Possibility of Parole in lieu of the death penalty. Although his grateful family cried tears of joy
at this decision, it should be evaluated critically considering probable outcomes for this and other
disabled clients. First among our concerns is the fact that treatment for ADD/ADHD is virtually
nonexistent in California correctional settings. Here, Ritalin, Cylert, and other such medications are
restricted prescriptions which are not administered to inmates. We know of several cases where
adult prisoners with attentional disorders were drugged with antipsychotic medications to “calm”
them, with potentially disastrous effects. Gene is one such prisoner who was prescribed Lithium
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to ameliorate behaviors associated with his long term ADHD diagnosis. Unfortunately, corrections
staff knew little about the potential side effects of this and other heat-sensitive medications until
Gene suffered a seizure in the hot exercise yard. Since then, he has experienced intermittent seizures
for which he understandably desires medical information and reassurance. However, since Gene also
suffers from a Learning Disability which renders him illiterate, he requires staff assistance to fill out
prison forms requesting medical appointments, and this has apparently become an administrative
annoyance. Thus, Gene has been branded a “pest” and admonished that he may only ask one medical
question per month related to his prison-imposed seizure condition.
Inmates like Carl can look forward to little or no actual treatment related to their disability
conditions. Indeed, Reception Centers assess certain skills in incoming prisoners such as academic
(as per a multiple-choice format test) or vocational ability, but final placement decisions are far more
concerned with an inmate’s security rating due to past convictions, his commitment offense, and
social affiliations (e.g., gang membership). Thus, a client like Carl is likely to end up in a maximum
security housing unit such as the notorious “SHU” at Corcoran and Pelican Bay. These placements
require in-cell isolation for up to 23 hours per day, with one hour allotted for solitary recreation.
Under these conditions, no educational, vocational, or other programming is accessible, regardless
of disability verification in the Central file.
Even if an inmate is housed with the general population, as a “lifer” he may be barred from
certain beneficial and/or therapeutic activities. For example, Tony is serving a life sentence at
Corcoran Prison, with classification that does not allow him to obtain vocational training which will
lead to gainful employment. A model prisoner, Tony has now qualified to take the GED examination
in order to obtain his high school diploma. However, several months following this qualification,
his instructor had neither requested nor arranged test administration.
These and other inmates with special education qualification are out of luck in the California
prison system, in that no formal offerings exist. Despite losing several recent class action lawsuits
related to disability accommodation in prison populations, the California Department of Corrections
(CDC) has not taken appropriate steps to assure that special needs are met, even for those prisoners
below the age of 22 years and who have current school classification at the time of incarceration.
In that more commonly understood disorders such as Deafness or Mental Retardation are not being
appropriately accommodated in educational and vocational programs, at hearings, or in daily prison
life, it remains unlikely that ADD/ADHD will fare any better without major changes in the
correctional system. As mentioned above, one avenue to change appears to be through litigation
based on the Americans with Disabilities Act of 1990*; but even where successful, administrative
remedies have been slow in coming. There has also been interest on the part of certain California
Legislature subcommittees in overseeing and monitoring the CDC more closely where disabilityrelated issues are concerned. All agree that much training in identifying and accommodating
cognitive disabilities is needed in corrections and parole, thus it is hoped that the Courts and/or
Legislature can and will be instrumental in making positive change a reality. Until then, “winning”
for ADD/ADHD and other disabled defendants is still “losing” as they enter a closed system which
neither understands nor accommodates their individual differences.
* For full text of Judge Wilkin’s Findings of Fact and Conclusions of Law in the ARMSTRONG V. DAVIS disability
rights lawsuit, visit the Northern District of California Web Site at: www.cand.uscourts.gov