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Professors discuss use of brain science in court

In this post, Professor Berman of the Sentencing Law and Policy blog, asks, “Can and should brain science research become a regular (and regulated) part of sentencing decision-making.”

The post goes on to discuss this NPR segment, which notes that “[a]bout 5 percent of murder trials now involve neuroscience,” and that such science has been particularly successful with cases involving teenage defendants.

The segment then discusses the potential downsides, “For example, [said Harvard psych. professor Buckholtz], if a prosecutor used an MRI scan to show that a 16-year-old who committed a capital crime had a very mature brain, ‘Would we then insist that we execute that juvenile?'”

Professor Berman responds that he “understand[s] [the] concerns . . . .  But juries and judges are drawn to scientific research largely because the [] alternative is to rely more on gut feelings, emotions, instincts or biases.  Unless brain scans provide a worse foundation for making judgments than gut feelings[, etc.], . . . they ought to have a role in legal decision-making.”

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I agree with Professor Berman’s analysis.  The job of the jury at trial, and one of the judge’s major roles at sentencing, is to determine the truth.  While “junk science” threatens to mislead these decision-makers, neuroscience—which suggests, for example, that childhood poverty affects brain development—certainly has a place in the courtroom, where its validity and probative value can be tested by the adversarial process.  Thus, I am with Prof. Berman who “hope[s] [ ] scientists and law professors [and lawyers and judges] will now turn their attention to debating how the legal system might most fairly and effectively operationalize what the brain research is telling us about . . . human behaviors and personal development.”



Marijuana Legalization Trend Leads Federal Judge to Give Reduced Sentences

On November 1, 2013, a U.S. District Court judge in Maryland gave sentences that were up to 25% lower than suggested by the U.S. Sentencing Guidelines to 20+ defendants being sentenced in a large scale marijuana trafficking operation case, citing the national trend of states legalizing and decriminalizing marijuana and the Justice Department’s recent decision not to prosecute marijuana distribution operations that are legal under state law.  (U.S. v. Dayi; August 2013 DOJ Memo).

Specifically, the judge found that changes in public opinion, state law and DOJ policy alter the calculus for two sentencing factors: (1) the seriousness of the offense and (2) the need to avoid unwarranted sentencing disparities amount those found guilty of similar conduct.

As to the first, the court stated, “Ultimately, the Court finds that, in 2013, strict Guidelines sentences would overstate the seriousness of the underlying offenses and therefore fail ‘to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.'”  For, “although the Guidelines for marijuana-related offenses have remained the same since 1987, state law and federal enforcement policy have changed significantly.”

Regarding the second factor, the court noted, “Although the illegal enterprise in these cases is not identical to these commercial distributors [in Colorado and Washington state] — i.e., it did not comply with the laws or regulations of any state and implicated several federal enforcement priorities — it nonetheless bears some similarity to those marijuana distribution operations . . . that will not be subject to federal prosecution. The Court therefore finds it should use its sentencing discretion to dampen the disparate effects of prosecutorial priorities.”

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This opinion could be an important first step toward a widespread understanding by sentencing courts that changes in public opinion, law and policy surrounding the decriminalization and/or legalization of marijuana affect the traditional understanding of appropriate sentences in marijuana cases.

See Sentencing Law and Policy Blog for more.


Can Lawyers Use Judge’s Compliments as Website Testimonials? NJ Federal Judge Says No.

A New Jersey lawyer’s website featured excerpts from unpublished opinions that complimented the lawyer’s work.  A federal judge asked the lawyer to remove the testimonial and the lawyer refused.  The judge then referred the matter to the New Jersey Committee on Attorney Advertising.  Thereafter, the Committee issued a guideline prohibiting attorneys from posting excerpts of opinions on their websites, but allowing them to post entire opinions, on the basis that the rule was necessary to prevent misleading advertising.  (NJ, Attorney Advertising Guideline 3).  The lawyer then sued in the U.S. District Court for the District of New Jersey, arguing that the guideline was unconstitutional.

On June 26, 2013, the District Court upheld the guideline, holding that it “is not a ban on speech but is instead a disclosure requirement.”  The court found that the requirement was reasonable under the test outlined by the Supreme Court in Zauderer v. Office of Disciplinary Counsel (1985), which requires that “disclosure requirements [be] reasonably related to the State’s interest in preventing deception of consumers” and that they not be “unduly burdensome.”

An ABA Journal article (“Unshared Compliments, by David Hudson Jr.) quotes Richard T. Kaplar, vice president of Media Institute in Arlington, VA, who says that the opinion provides no explanation as to why the requirement to post the entire opinion, and disallowing excerpts, is not unduly burdensome.  Kaplar futher states that “Guideline 3 appears to be a de facto restriction on speech masquerading as a disclosure requirement.”

The lawyer plans to appeal the ruling to the Third Circuit.

UPDATE (11/18/13): WSJ discusses the lawyer’s appeal – http://blogs.wsj.com/law/2013/11/18/when-paying-a-lawyer-a-compliment-doesnt-pay/.


Candidate’s Testimonial Ad for Construction Company Possibly Violated Federal Election Law

Congressional candidate Tom Emmer provided a video testimonial for a construction company in which he says, “Hi, I’m Tom Emmer, and I’m running for Congress . . . .  If you’re looking for someone to do remodeling, siding or general construction . . . you need to call the folks at Integrity Exteriors and Remodelers.  They’re the best.”  (Star Tribune).

A lawyer at the Campaign Legal Center commented that “If this thing ran on TV, this is an illegal, corporate in-kind contribution to a candidate for federal office, in the form of a coordinated ad.”

Coordination is problematic in this context because, while a company can engage in “independent expenditures” in support of a candidate, companies cannot donate directly to candidates or campaigns—and coordinated expenditures are deemed direct contributions.  Because Mr. Emmer was clearly involved in the creation of the ad, and because he discussed that he was running for office, the testimonial commercial may have provided direct value to the campaign in violation of federal election law.

The campaign maintains that the commercial was an advertisement for the construction company, not Mr. Emmer’s campaign.  The problem is that Mr. Emmer mentioned his candidacy, and because informing voters that the candidate is running for office is a key campaign goal, the commercial arguably helped the campaign.

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While these issues are relatively straight-forward in hindsight, Mr. Emmer clearly did not think about them when he agreed to do the testimonial.  This story shows how easy it is to accidentally run afoul of election laws, and thus how important it is for every campaign to have an election law attorney.


Top Federal prosecutor comments on “broken,” “unjust,” and “unsustainable” criminal justice system, proposes reforms

The tides appear to be turning in Washington on the “War on Drugs.”  On August 12, 2013, United States Attorney General, Eric Holder, discussed the “broken” criminal justice system in America, commenting:

“Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities.  And many aspects of our criminal justice system may actually exacerbate these problems. . . .   It’s clear . . . that too many Americans go to too many prisons for far too long, and for no truly good . . . reason.”  (8/12/13, Eric Holder Speech).

He continued:

“[W]idespread incarceration at the federal, state, and local levels is both ineffective and unsustainable.  It imposes a significant economic burden – totaling $80 billion in 2010 alone – and it comes with human and moral costs that are impossible to calculate.”

He also recognized the significant racial disparities in the American criminal justice system, saying, “We also must confront the rality that . . . people of color often face harsher punishments than their peers[, which is] unworthy of our great country, and our great legal tradition.”

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In response to these problems, the Attorney General noted three specific changes of policy within the United States Attorneys Office:

1. “[R]ethinking the notion of mandatory minimum sentences for drug-related crimes”;

2. “updat[ing] [the] frameword for considering compassionate release for inmates”; and

3. “ensur[ing] that every case [] br[ought] serves a substantial federal interest[.]”

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It remains to be seen whether these policy changes will have a significant real-world impact.  However, it is clear that the boss of all federal prosecutors believes the current system is “unjust and unsustainable” and needs to be significantly reworked, and it is likely that skilled federal criminal defense lawyers will be able to utilize these policy changes to obtain more appropriate and just outcomes for individuals facing federal criminal charges or under federal indictment.


Indiana lawyer suspended for ‘illegal alien’ comment

The ABA Journal reported that an Indiana lawyer was suspended for 30 days for sending a letter to opposing counsel and copying the judge in which the lawyer commented on the immigration status of the opposing party, stating, “Your client doesn’t understand what laws and court orders mean i guess.  Probably because she’s an illegal alien . . . .”

The full text of the 2-page opinion is available here.


Elliot Abrams quoted in Lawyers Weekly article about representing students accused of university misconduct

In a post entitled “Student Lawyering,” David Donovan of North Carolina Lawyers Weekly wrote about a new North Carolina law that gives students accused of serious misconduct by a university the right to hire a lawyer to represent them at the university proceeding.

One lawyer was quoted as saying that the new law “will mean that students will have a chance to truly present their case.”

Elliot Abrams, an attorney with Cheshire Parker who has helped a number of students with these types of cases in the past, was quoted saying that the new law “will hopefully restore a level of neutrality and fairness to a system that had become dominated by political pressures unrelated to the guilt or innocence of the accused.”

If you or your son or daughter is accused of violating a college’s honor code or is facing university discipline, please contact us for help.


Judge Rejects Prosecutors’ Request for Long Imprisonment

While prosecutors sought 17+ year term of imprisonment with a fine of less than $250,000, a New York federal district court judge sentenced a former UBS employee to a term of 18 months with a fine of $1m.

The employee, along with others who received similar sentences, were found guilty by a New York jury of defrauding municipalities of millions of dollars in bond deals.

The blog Sentencing Law and Policy had this to say:

I am especially eager to praise Judge Wood for using big financial penalties — which make the government money and seem especially fitting for crimes of greed — while refusing to use big imprisonment terms — which cost the government money and seem unlikely to impact public safety for non-violent white-collar criminals.

(See this WSJ article for more on the case.)


North Carolina Consolidated Sentence Counts as One Prior Conviction for Federal Sentencing

The Fourth Circuit recently ruled that a “consolidated sentence” given in North Carolina state court will be counted as a single prior conviction for federal sentencing purposes.  (See US v Davis and this Fourth Circuit Blog post.)  This ruling significantly reduces the sentencing exposure of many defendants charged in federal court.


Lawyers discuss problems with honest services wire fraud re: campaign contributions

In their brief supporting Kevin Ring‘s petition asking the Supreme Court to review his conviction, a first amendment group and well-known San Francisco criminal defense attorney outline the vague nature of the “honest services” wire fraud doctrine as it applies to lobbying and campaign contributions.  The brief discusses how that uncertainty threatens to reduce legitimate participation in our campaign finance system.

Below is an excerpt of the brief:

According to the [D.C. Circuit] court of appeals, not only may the quid pro quo be implicit, not linked to any specific official act, and provable through evidence of lawful campaign donations; it can also rest on the donor’s unilateral hope that the gift might influence the public official in some unspecified way in the future.

The court of appeals’ decision amounts to a “meat-axe” where a scalpel is needed. . . .  Reasonable, precisely targeted laws regulating gifts to public officials are entirely appropriate and consistent with First Amendment standards. . . . But the vague contours of the honest services statute, as interpreted by the court of appeals, will inevitably “operate to inhibit protected expression by inducing citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” . . . .

In 2010, the U.S. Supreme Court held that the federal crime of Honest Services Wire Fraud (18 U.S.C. § 1346) was unconstitutionally vague as applied to cases that did not include bribery or kickbacks.  (Skilling v. U.S.).  Ring hopes to have his convictions overturned on a similar basis.

UPDATE: Oct. 7, 2013: Supreme Court denies to hear Ring’s appeal.  (SCOTUSblog).



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