Total Pageviews

Tuesday, April 18, 2017

Does your client have a right to see the evidence against him? (Criminal)

Part of the job of a good defense attorney is to fight. Not random gestures aimed at demons and ghosts, but rather concerted efforts to prevent our clients from being trampled by the well intentioned bootheels of the prosecutorial beasties. A recent example of this bears sharing, as others may be faced with the same nonesense, and the case law provided here should help.

Does your client have a right to view the evidence against him/her? The succinct answer is -- yes! In our current case, an individual was charged with child sexual abuse. The child in question gave a video interview. While counsel and our expert were permitted to review the material, the client was expressly excluded from reviewing the interviews; in fact, the defense could not ever discuss the interviews with him!

There is no legal basis for barring access to accusatory material in child sexual assault cases. This, however, is not always true in all cases. Certain national defense cases, and child pornography cases are both examples where the government can, by statute, prevent client access to materials involved in the case. However, these carve outs are rare, and the presumption should be that, under due process considerations, the client may view, discuss, and make notes about any allegations stated against him, and further, may discuss the same freely with his attorney.

A distinction is needed here. Common sense indicates that if the defendant is dangerous, or could pose a threat to the witness making the statement or the evidence being displayed, precautions and safeguards must be used. Generally, the government will produce a "protective order" which limits the use and access to sensitive materials produced under the Brady or Jenks doctrines. This should be narrowly constructed to allow maximum defense access, while ensuring safety and a return of materials at the conclusion of the case. At no time should the defense agree to review materials in the presence of the prosecution unless statutorily required or so ordered by the Court. Always fight this. Allowing the government to view those parts of the materials that the defense finds important, and note what areas you are concentrating on, represents a serious breach in trial preparation confidentiality, and can severely weaken the defense case.

What action do you take when the government will not cooperated? File a motion to compel production of relevant materials. I am including draft language with this post. It is geared towards the District of Columbia rules. However, these rules are largely based on Maryland and Federal procedural rules, so they have considerably broader application.

Example wording:
LEGAL BASIS
a. This motion is brought under Superior Court Rules of Criminal Procedure 16(d)(2) which states:
(2) Failure to Comply. If a party fails to comply with this rule, the court may:
(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed evidence; or
(D) enter any other order that is just under the circumstances.


Superior Court Rules of Juvenile Proceedings 16(d)(2) is identical in scope to the Criminal rule.

b. In this instance, the Government has taken an untenable position, and thereby denied the Defendant a right to see, hear, and understand the evidence presented against him. The case at bar is entirely dependent on the testimony of the alleged victim and her brother. It is alleged to have occurred over a period of time (unspecified), and includes multiple acts which the Defendant has denied, to the extent he is aware of what was said.

c. The witness’ interviews are impeachment evidence challenging the witness’s credibility. Such evidence generally falls within the Brady rule. See, Giglio v. United States, 405 U.S. 154 (1972); Lewis v. United States, 408 A.2d 303, 307 (D.C. 1979). The importance of impeachment evidence was noted in Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (plurality opinion), where the Court remanded for the trial court to reexamine Confidential records for materiality.

d. Note that a subpoena cannot be issued for CDC records pursuant to D.C. Code § 4-1301.52; relief in this instance requires a Court order. Disclosure of medical or psychological records, certain juvenile records, and other confidential records will only be ordered by the court if the defendant can make a “proffer adequate to overcome [the] privacy interest” of the subject of those records. See, Hammon v. United States, 695 A.2d 97, 106 (D.C. 1997). The Defense submits the following proffer in regards to CAC records in this case:
• (A) The outcome of the proceeding probably would be different if the requested information and records were not disclosed. Without disclosure of the allegations, a proper defense cannot be had. Further, the witnesses’ statements are absolutely contradicted by the complainant’s father, and the complainant’s uncle, who both state that CLIENT was never left alone with the complaining witness overnight or otherwise. Additionally, no time frames were provided by the Government in its petition, or in the PD-163/Gerstein. Unable to place the timeframe or context of the allegations is a severe restriction to the defense. If the child provide information that would identify alleged events or timeframes, the defense is entitled to know this under the Brady doctrine.
• (B) The CAC is the only source of the requested information and records. The interview were done by Safe Shore’s social workers. These records only exist with the Government, and the CAC is a Government agency not subject to subpoena.
• (C) The requested information and records would be subject to disclosure in the proceeding if they were in the possession of the government. Pursuant to Brady, and Jenks, these documents and interviews are discoverable, and are in the possession of the Government. Arguably, denial of Defense access constitutes a violation of the confrontation clause and the due process clause of the Constitution; this material is testimonial in nature, and it forms the basis of CLIENT arrest and petition.
• (D) Disclosure of the requested information and records would not violate any other applicable law, rule, or regulation. The Defense is unaware of any law that prohibits the disclosure of complaining witness testimony. e. The court has an obligation to ensure that the mandates of the due process protections of the Brady doctrine are followed. In Boyd v. United States, the court held that the trial court had an obligation to assure that the government properly discloses Brady to the defense. 908 A.2d 39 (D.C. 2006).


f. The “prosecution must disclose exculpatory material ‘at such time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case.’” Edelen v. United States, 627 A.2d 968, 970 (D.C. 1993) (quoting United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir 1976)). The Government does not get to dictate to the Defense how or when it will share these interviews. We need these to properly execute the Defense.

g. Additionally, our expert is unable to review the interviews and subsequently discuss and interview CLIENT with the material learned under the Government’s proposed order. This acts to severely restrict the defense and the ability to develop a cogent theory.


Note that you must show a compelling reason that the material is relevant and needed, and you must argue that such material must be provided timely to allow for the defense.

The next secton deals with painting the government in a bad light. You must show that the State has refused to provide the material, despite best efforts to coordinate. Usually this happens when the protective order constrains release of the material to anyone except those enumerated in the protective order itself, and the propsoed order lacks your client as an individual who can see the material.

GOVERNMENT’S RESPONSE
a. When Defense Counsel expressed a desire to review the material outside the presence of the Prosecution, Government’s Counsel responded:
I can agree to the protective order as it is currently written , for the reasons I forwarded to you on Monday. And again, you are welcome to come to our offices to review the video. See, Exhibit 3.

b. This comports with earlier Government statements indicating that the videos could only be reviewed in the Prosecutor’s office. Such coercive measures by the Government impinge on the Defense’s freedom of interference in the development of the case at bar, and are impermissible. See, Khaalis v. United States, 408 A.2d 313 (D.C. 1979) citing to Gregory v. United States, 125 U.S.App.D.C. 140, 143, 369 F.2d 185, 188 (1966) (a prosecutor's actions which "effectively [deny] defense counsel access to the [government] witnesses except in his presence" violate due process), after remand, 133 U.S.App.D.C. 317, 410 F.2d 1016, cert. denied, 396 U.S. 865, 90 S. Ct. 143, 24 L. Ed. 2d 119 (1969).

More specifically in Gregory at 188-189:
The current tendency in the criminal law is in the direction of discovery of the facts before trial and elimination of surprise at trial. A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case. Information favorable to the defense must be made available to the defense. Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Reversals of convictions for suppression of such evidence, and even for mere failure to disclose, have become commonplace.


In further discussing the balance between Government access to information, pre-trial, and the Defense access to the same information, United States v. Shrake characterized Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208 (1973), as holding that rules about pretrial discovery in criminal prosecutions must apply to prosecutors as well as to defendants. “Access provided to private experts retained by the prosecution must be provided to private experts retained by the defense.” 515 F.3d 743, 747 (7th Cir. Wis. 2008).

United States v. Hitselberger, 991 F. Supp. 2d 91, 99-100 (D.D.C. 2013) discussed the obligation of the Government in discovery matters. [Referring to] Wardius v. Oregon, the Supreme Court held that liberal systems of discovery generally comported with the protections afforded to defendants under the Due Process Clause because allowing both parties the "maximum possible amount of information with which to prepare their cases...reduce[s]...surprise at trial" and would best serve the "ends of justice." 412 U.S. 470, 472 - 474, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973). The Court however places one important limitation on broad discovery rules: criminal defendants must be afforded reciprocal discovery rights. Id. at 472.


Finally, bring home the punch by showing that there is no legally defensible reason to prohibit access. Then...end the motion and get out!

By denying the Defense access to review, deconstruct, develop cross examination questions, and debate the evidence in the possession of the Government (in this case, the interviews), the Government is allowing its experts (the CAC licensed social workers) to freely investigate the case and the facts surrounding the case, without restriction, while prohibiting the defense such freedom.

Unlike a child pornography case, or a classified information case, there are no specific statutes at play, in the case at bar, that would prohibit the Government from providing the requested information. No justification has been given for making the discovery material “attorney eyes-only” or as to why [CLIENT] should be prohibited from viewing the same.

NOW THEREFORE, Your Defendant requests this Honorable Court grant the following relief:
a. Compel the Government to modify the protective order to include the following language (or similar, at the discretion of the Court), and immediately after execution, deliver the materials to the Defense.
“The Defendant (Respondent) will be permitted to view the material in the presence of defense counsel only; further, no copies of the materials, or transcripts of the same, shall be provided to Defendant (Respondent).”

b. Compel the Government to provide all statements made by CLIENT, and to provide a copy of any DVD or recorded medium related to the same.
c. In the alternative to (a) above, permit the Defense expert to interview both children and ask such questions as are appropriate for the full and complete investigation of allegations raised in this case.


Do you need help crafting a proper proposed protective order for criminal information shared with the defense? Need help with a serious criminal case? Let us assist you! We've been handling felony cases for years, and would be glad to chat about your case and the situation you are facing. You can reach us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

The difference between "credible fear" and "reasonable fear" interviews by ICE/DHS

From time to time we run into this question -- what is the difference between there two types of interviews? A recent question asked on an immigration board, to which we belong, is typical:
I have a detained client who received a positive reasonable fear determination. I checked the law, and I cannot find anything that states his bond eligibility. Anyone have any information on this?

ANSWER: A reasonable fear determination (as opposed to a credible fear determination) is the term used by DHS/ICE when the detained individual has a prior removal order that is not extinguished (still active). Although this was not mentioned in the above scenario, judging from the term used ("reaosnable fear"), I would guess that is the case. If it is, the judge lacks the authority to issue a bond.

The controlling provisions for bond/custody re-determination hearings are found at INA §236; 8 CFR §1003.19 and 1236.1. The bond hearing is separate and apart from the removal hearings pursuant to 8 CFR §1003.19(d).

The kicker is here: The immigration judge has no authority to review custody determinations if the alien has an administratively final order of removal or deportation. INA § 241; 8 C.F.R. § 1236.1(d)(1); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981).

It should be noted that because a credible fear determination stems from an aliens status as "arriving," immigration judges also lack authority to grant bond to individuals who have a positive credible fear determination, whether or not ICE/DHS grants them parole or bond.

Do you have an immigration question? Call us! We can help. We are experienced in both immigration court defense, and forms based business and family adjustments. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Sunday, April 2, 2017

Drug use and the I-485


Section 3 of the I-485 -- asking about drugs.


I had a chance to help a fellow practitioner the other day, and I thought I would share his question so others might benefit, too!
You do a ton of litigation, and I also know you are helpful to newer practitioners. I'm a newer practitioner, so I hope you don't mind me asking a question about AOS. My question is about the I-485 question in Part 3.C.1.a. "Have you ever, in or outside the United States: a. Knowingly committed...a drug-related offense for which you have not been arrested." I am trying to figure out how it comports with INA 212(a)(2)(i)(II). That section deals with inadmissibility relating to "admits committing acts which constitute the essential elements of" a drug-related offense." Are these two related?

This all comes about because of a client's discussion with me. If a client tells you they used drugs, do you think you are obligated to check "Yes" to Part 3.C.1.a.? Or do you think "Yes" requires something more than just your knowledge the client used drugs?

Your question fits into the general category or “once the cat is out of the bag (to the lawyer), am I obligated to do something about it?” The answer is…sometimes.

Generally, in order for you to take action on what you client says, it needs to be clearly and unequivocally a violation of some rule or law. And even then, you are not obligated to disclose it; rather you cannot sign or submit something that you know contains a material misstatement. The distinction is important. What the client chooses to say at, say a interview, or open Court, is up to the client. However, you cannot submit, under your signature, or as a proffer, something you know to be false.

To bring this back to your question – merely using drugs may or may not be illegal back in this person’s home country. You are not a lawyer (presumably) from his/her home country, so you can’t say for certain whether his/her action rises to the level of requiring a “yes” answer to 3.C.1. By the way, 3.C.1 is absolutely NOT the same as INA 212(a)(2)(i)(II). 3.C.1 has a “knowing” requirement that is absent in 212(a)(2)(i)(II) – and that is a significant difference in the criminal world.

Again, back to your question – unless the individual indicated, “yes, I have knowingly committed a drug offense in my home country” the answer would be – “I can’t say whether that is a drug offense in your home country, as I don’t practice law there. You can answer this question “No” if you believe it is not an offense, or you can contact a lawyer in your home country to get information on whether this is an offense or not.”

As a practical matter, unless he was arrested, or charged, there won’t be a record of anything. The risk here is minimal (in terms of USCIS learning of his prior drug use, absent an arrest or conviction). Now, if you have a dummy for a client who intends to blurt out that they like to smoke weed and do crack back in Fez – well, all bets are off.

Do you have an immigration question? Ask us! We're happy to help. We've handled immigration defense and filing for many years -- and we're glad to bring our expertise to bear for your case. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com