Plea Program Altered After Ethics Opinion, But Critics’ Constitutional Challenge Looms

Aug. 25 — The top prosecutor and the chief public defender in Franklin County, Pa., have agreed to implement changes to an “early accountability” plea program after the state bar’s ethics committee concluded that it forces defense lawyers to violate professional conduct rules. But the modifications may not be enough. James A. Swetz, president of the Pennsylvania Association of Criminal Defense Lawyers, told Bloomberg BNA. The changes may not adequately address alleged constitutional infirmities that led his group to challenge the plea-deal program in the first place, Swetz said. Continue Reading →

Driver’s Consent to Search Was No Good Because Passengers Were Out of Earshot

Aug. 25 — Police officers who stopped motorists on an interstate road trip couldn’t rely on the driver’s consent to search all the luggage in the trunk when that consent was obtained without the passengers’ knowledge, the U.S. Court of Appeals for the Fifth Circuit held Aug. 19. (United States v. Iraheta, 2014 BL 230751, 5th Cir., No. 13-30545, 8/19/14)

In a past case, the court held that a driver’s consent to search covered all the luggage in a vehicle where the passengers didn’t object to the officer’s search. Continue Reading →

Expunged Criminal Records May Be Used In Disciplinary Proceeding Against Prosecutor

Aug. 27 — A prosecutor accused of suppressing exculpatory evidence in a criminal case can’t prevent disciplinary authorities from accessing records from the criminal trial by citing an expungement order entered in the case, the Texas Supreme Court held Aug. 22. (In re State Bar of Texas, 2014 BL 233916, Tex., No. 13-0161, 08/22/14)

To conclude that the expungement statute on which the order was based bars the disciplinary commission from using records of the criminal case would contravene the purpose of the expunction law, ignore the acquitted defendant’s interests and wishes and interfere with the disciplinary system, Justice John Phillip Devine said in an opinion for the court. Continue Reading →

Restitution Statute Trumps Bankruptcy Code’s Automatic Stay

Sept. 2 — A provision of the Bankruptcy Code that automatically suspends all activities related to the collection and enforcement of pre-petition debts doesn’t preclude the government from enforcing a criminal restitution order against property of a bankruptcy estate, the U.S. Court of Appeals for the Sixth Circuit held Aug. 22. (In re Robinson, 2014 BL 233306, 6th Cir., No. 13-5857, 8/22/14)

Like other courts addressing similar questions, the Sixth Circuit focused on language in the Mandatory Victims Restitution Act, 18 U.S.C. § 3613(a), which provides that “notwithstanding any other Federal law,” a court judgment imposing a fine “may be enforced against all property or rights to property of the person fined.”

The defendant in this case was convicted of defrauding more than 1,000 victims in mail and wire fraud schemes and was ordered to pay restitution. Continue Reading →

Defendant’s Breach of Appellate Waiver Relieves Government of Plea Deal Promises

Aug. 28 — A defendant who violated the terms of his plea bargain by appealing his sentence must go back to the district court and face de novo resentencing where the government will be relieved of its obligation to recommend a bargained-for downward departure, the U.S. Court of Appeals for the Third Circuit ruled Aug. 26. (United States v. Erwin, 2014 BL 236633, 3d Cir., No. 13-3407, 8/26/14)

The government lived up to its end of the bargain but was then forced to devote significant resources to “litigating an appeal that should never have been filed in the first place,” the court said in an opinion by Judge Michael A. Chagares. Continue Reading →

2009 Hate Crime Statute Requires Proof That Animus Was ‘But for’ Cause of Assault

Aug. 27 — The U.S. Supreme Court’s discussion of criminal causation in Burrage v. United States, 2014 BL 20036, 94 CrL 493 ( U.S.2014), means that the Matthew Shepard Act requires proof that an assault wouldn’t have occurred in the absence of the defendant’s animus for the victim’s perceived race, religion or national origin, the U.S. Court of Appeals for the Sixth Circuit decided Aug. 27. (United States v. Miller, 2014 BL 237311, 6th Cir., No. 13-3177, 8/27/14)

The jury instructions at the trial of the defendants in this case stated that a guilty verdict could be based on a finding that a victim’s “actual or perceived religion was a significant motivating factor” for a defendant’s actions even if the defendant “had other reasons for doing what he or she did as well.”

The jury’s use of this lesser standard of causation requires the reversal of the convictions of 16 Amish defendants who cut off the beards and hair of other Amish individuals during separate attacks, the appeals court held. Continue Reading →