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FBI will now record (some) interviews

Since its founding in 1908, DOJ policy explicitly prohibited the recording of suspect and witness interviews.  That will change on July 11th, 2014.

The new policy, announced in a memo from Deputy Attorney General James M. Cole, “establishes a presumption” that the FBI, DEA, AFT, and US Marshals “will electronically record statements made by individuals in their custody.”  The policy “also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply.”  This would include in the questioning of witnesses.

This policy is a positive step in the pursuit of truth and justice.  It will help protect against mistakes and lies in the recounting of witness statements, and will expose and possibly curb “deceit and psychological trickery legally employed by agents to obtain information and confessions.”  (AZ Republic).

The policy contains exceptions for public-safety situations and national security intelligence-gathering interviews, among others.

While it remains to be seen how quickly agents respond to this policy and how often the exceptions are utilized, as a former U.S. Attorney for Arizona commented, “It’s a step in the right direction[.]”  (AZ Republic).


Here is a link to the memo – 225510239-DOJ-Recording-Policy


Study Finds 1 in 25 Sentenced to Death Likely Innocent

A study authored by Samuel Gross, a professor from University of Michigan Law School, and others suggests that several of the 1,320 people executed in the United States since 1977 were likely innocent. The following is from a Washington Post article on the subject:

“Gross and three other researchers, including a biostatistics expert, looked at the issue using a technique often used in medical studies called survival analysis. Yale University biostatistics expert Theodore Holford, who wasn’t part of the study, said the work done by Gross ‘seems to be a reasonable way to look at these data.’

“Because of various assumptions, it might be best to use the margin of error in the study and say the innocence rate is probably between 2.8 percent and 5.2 percent, said University of South Carolina statistics professor John Grego, who wasn’t part of the study.

“The study is the first to use solid and appropriate statistical methods to address questions of exoneration or false convictions, an important subject, said Columbia Law School professor Jeffrey Fagan, who also is a professor of epidemiology at the Mailman School of Public Health. The research combines data from three independent sources, a rigorous approach used by few studies on capital punishment, he said.”

While the authors conclude that this percentage is relatively low, their findings provide additional support for the concept that innocent people have been and will continue to be put to death in the United States as long as the death penalty is an option.


Joe Cheshire Named Top North Carolina Lawyer by Super Lawyers

Joe Cheshire was named the top lawyer in North Carolina by SuperLawyers.com in its 2014 rankings.

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Super Lawyers is a ranking service that uses a multiphase selection process, which includes peer nominations and evaluations, as well as independent research, to select outstanding lawyers throughout the state.  Only five percent of all practicing attorneys are selected for inclusion in Super Laywers.  To read more about the SuperLawyer.com selection process, please click here.


Nine Cheshire Parker Lawyers Listed in N.C. Super Lawyers

SuperLawyers.com has released its 2013 awards.  Three of our lawyers were listed among the “Best of the Best” lawyers in North Carolina, and nine of our lawyers were honored with distinctions as SuperLawyers and Rising Stars.

In addition to the above three, the following lawyers were rated as Super Lawyers by SuperLawyers.com:

Three of our Raleigh lawyers were recognized as “Rising Stars” by the rating site.  They are:

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Super Lawyers is a ranking service that uses a multiphase selection process, which includes peer nominations and evaluations, as well as independent research, to select outstanding lawyers throughout the state.  Only five percent of all practicing attorneys are selected for inclusion in Super Laywers.  To read more about the SuperLawyer.com selection process, please click here.


Silence Not Consent in Bus Station Search, Appeals Court Holds

“On April 14, 2011, the Durham Police Department received a call reporting . . . that three African-American males in white t-shirts were chasing an individual who was holding a firearm. . . . [Upon responding to the scene, an officer] noticed a group of six or seven individuals in a sheltered bus stop. Three of the individuals were African-American males wearing white shirts.

[The Defendant] was in the bus shelter but was wearing a dark shirt. [The officer] approached the bus shelter to investigate. By the time he arrived, three or four other police officers had already converged on the scene. . . . While the other officers were already ‘dealing with the other subjects at the bus shelter,’ . . . [the Defendant] was still seated in the shelter. . . . [The officer] stopped about four yards in front of [the Defendant], who was sitting with his back to the shelter’s back wall. Thus [the Defendant] was blocked on three sides by walls, faced a police officer directly in front of him, and had another three or four police officers nearby who were ‘dealing with’ every other individual in the bus stop. . . .

“After approaching [the Defendant], [the officer] first asked whether [the Defendant] had anything illegal on him. [The Defendant] remained silent. [The officer] then waved [the Defendant] forward in order to search [him], while simultaneously asking to conduct the search. In response to [the officer’s] hand gesture, [the Defendant] stood up, walked two yards towards [the officer], turned around, and raised his hands. During the search, [the officer] recovered a firearm from [the Defendant].” (U.S. v. Robertson).

The Defendant moved to suppress the firearm seized during the search, arguing that he was merely obeying an order, as opposed validly consenting to a search. The Fourth Circuit agreed and suppressed the firearm.

The court cited Bumper v. N.C., 391 U.S. 543 (1968), for the proposition that the government’s burden of proving consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” The court noted that “[t]he area around the bus shelter was dominated by police officers”; [t]he officer’s questioning [of the Defendant] was immediately accusatory”; [the Defendant’s] exit was blocked by [the officer]”; and the officer “never informed [the Defendant] that he had the right to refuse the search.” In combination, these factors “clearly communicated to [the Defendant] that he was not free to leave or to refuse [the officer’s] request to conduct a search.” Thus, the Defendant’s “only options were to submit to the search peacefully or resist violently.” The court held that these facts “are not enough for the government to demonstrate valid consent.”

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This case provides an updated rubric for analyzing consent issues in search cases. The opinion addresses many additional factors that if present may have changed the outcome—the most important seems to be the officer informing the person that they have the right to refuse to be searched. The opinion is worth reading for any North Carolina criminal lawyer considering filing a motion to suppress in a case involving a claim of consent to search. It is possible that the same logic could apply even if the person had actually given affirmative consent when it seemed to him or her that there was no other option.



I Didn’t Do Anything Wrong, Why Shouldn’t I Talk to the Feds?

Everyone has heard this piece of common wisdom: never talk to law enforcement without a lawyer. Yet many intelligent people do so anyway.


Most people know they aren’t criminals.  So they think, “Why shouldn’t I give an interview?  I’ve done nothing wrong.”

The problem with this thinking is that it assumes that the criminal law punishes only knowing violations of the law.

While that should be true, in the mid-1980’s the Federal government began a trend of using the criminal law to regulate behavior, and often doing so without requiring that the person have a “guilty mind” before being labeled a felon, fined and imprisoned.

It is this second part of the trend that causes the most problems for ordinary citizens.

The mental element in a crime is known as “mens rea,” which can be defined as the intention or knowledge of wrongdoing.  For example, the accidental killing of a person is not murder, because murder requires the homicide to be intentional.  That intentionality requirement is the “mens rea,” and it is an important safeguard to prevent innocent people from being convicted of crimes and sent to prison.

However, a WSJ article from late 2011 reported that  “more than 40% of nonviolent [criminal] offenses created or amended during two recent Congresses . . . had ‘weak’ mens rea requirements, at best[.]”  More recently the Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) published  a joint paper outlining the potential for “pervasive injustice” that results from the practice of discarding “the justification for criminal punishment that has for centuries been based on an individual’s intent to commit a wrongful act.”  (“Without Intent” paper).

One effect is an explosion in our prison population, as one in every 100 adults in America is behind bars, and one in 31 adults is under “correctional” supervision.  (The Economist).

The important impact of this development for the average person, however, is that it obliterates the concept that a person has nothing to fear from the Feds if they know they’ve done nothing wrong.

Today, you can be perfectly innocent in your own mind and still be a criminal in the eyes of the federal government.

So, if a federal agent shows up at your door, be polite, but be smart–decline the offer to speak then and there.  Get their card and tell them you will be in touch about scheduling an interview.  Then call a federal criminal defense attorney.

While your lawyer may decide that being interviewed is the appropriate option, it is not a decision you should make on your own.


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.


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