The past week was one of extraordinary revelations relating to foreign policy and corruption at the top of the government of the United States. The public got to see two documents, just months after they were created: first, the “TELCON” or transcript of a phone call between President Donald Trump and Ukrainian President Volodymyr Zelenskyy that took place on July 25; then, twenty-four hours later, a detailed letter from an unnamed whistleblower to congressional oversight committees accusing the president of self-dealing that sounds like treason — soliciting foreign interference in American elections as a condition of military aid.
The documents read like filings from a criminal trial. Here is one defense lawyer’s perspective.
The letter, which is referred to as the whistleblower’s complaint, resembles an affidavit in support of a search warrant or a criminal complaint in federal court. It is, in effect, sworn to and signed by a witness — a law enforcement officer in court, probably a CIA or foreign service officer here — but written by a lawyer. As the New York Times pointed out, the whistleblower complaint is unusually well written: right to the point, active verbs, clear sourcing. It incorporates law as necessary, but does not let legalese or George Orwell’s tricks-of-the-trade get in the way of clear communications. At the very outset of a federal criminal case, an experienced lawyer has a sense of how strong the government’s case is based on whether the criminal complaint reads like this (criminal complaints are used in federal court to establish probable cause for an arrest; to proceed to trial, the government must then obtain an indictment, which is voted on by a grand jury but does not spell out the basis for the probable cause). Many complaints are vague, verbose and fall back on the passive voice. Those linguistic weaknesses frequently cover holes in the evidence that become more apparent as the case develops.
Defense attorneys were turned away from the high rise federal jail in lower Manhattan known as the Metropolitan Correction Center on Saturday morning. The Legal Department told us, it was “due to an earlier security issue.” Apparently, they were scouring the jail to find Jeffrey Epstein’s killer.
Epstein was found dead by hanging. He had been taken off suicide watch less than two weeks earlier. Suicide watch is a special unit where each prisoner is observed 24/7 by another prisoner who has special training. Epstein had been placed on suicide watch after he was found unconscious with neck injuries on July 23. Seems the prison hierarchy thought six days was enough even for a man whose rich, hedonistic, rapacious lifestyle had come to a crashing end. From there, they put him in the “SHU” — the notorious special housing unit, typically reserved for the most violent inmates. Then, they took away his roommate. Then, guards stopped checking in on his cell every thirty minutes like they are supposed to.
He was found dead at 6:30 a.m., according to the New York Times.
Starting this month, I have been teaching an innovative new class about computer crime and high-tech government surveillance at the Stevens Institute of Technology in Hoboken. The course covers legal developments over the last two decades that have shaped how the government investigates computer crimes, such as computer hacking and the distribution of child pornography, as well as conventional crimes like drug trafficking and fraud that have become more efficient by using new information technologies. The course syllabus can be found here.
The topics we will cover come directly from our hands-on work for clients at the Law Office of Zachary Margulis-Ohnuma over the past couple of years. They include:
- border agents’ authority to search computer devices at the United States border without a search warrant or suspicion,
As of December 27, there were 180,429 prisoners in federal custody. Think about that a minute — about a fifth the population of San Francisco behind bars for interstate crimes. No one seriously thinks this many people should be housed, clothed, fed, and secured with federal tax dollars. (More than 2 million people are incarcerated in the U.S. when you include state and local facilities, way more than any other country in the world, including China, which has four times as many people and notoriously strict laws).
There are two reasons for the staggering number of federal inmates: over-criminalization and excessive sentences. In other words, too many things you can do can land you in federal prison: crimes like fishing in the wrong waters, or charging a health insurer for dental work performed by an unlicensed dentist. And when people are locked up for federal crimes, it is for too long, like when a teenage street-level drug dealer is held liable for the whole drug conspiracy that he is part of.
So what a breath of fresh air when the lame-duck Congress briefly came together at the end of 2018 to agree on federal criminal justice reform. Pres. Donald J. Trump signed the so-called “First Step Act” into law on December 21. The press crowed that Trump would “go down in history” and that the changes represented a “sweeping reform.” Probably none of them read the 148-page law, which will have no effect on the vast majority of people caught up in the federal criminal justice system. At a human level, the most important provision of the new law is that it bans the barbaric practice of using restraints on female inmates as they are giving birth. You read that correctly. Until recently the Bureau of Prisons routinely shackled women in the hospital, in labor, as though they might take the opportunity to escape as their baby was being born. It took Donald Trump and a voted-out-of-office Republican congress to finally make that illegal.
People who seek out criminal lawyers are human beings, in all their vast complexity. An important part of our jobs as lawyers is to reveal the full person to the court: their prior conduct, the quality of their relationships, their health and addiction issues, and their prospects for the future. If a case cannot be won at trial, then these factors make all the difference in obtaining a fair sentence at the end of the day. We have always known from our day-to-day practice that presenting the person to the court, looking beyond the crime, beyond the past, and toward the future, makes a huge difference in avoiding prison or getting a short, just sentence. Now, there is a study showing just that.
This morning the Rand Corporation and the University of Pennsylvania Law School released a study to be published in the Harvard Law Review analyzing a mountain of data tailor-made to compare the holistic approach with an approach that has less resources to present the whole person to the court. Researchers looked at clients of the Bronx Defenders and the Legal Aid Society facing charges in the Bronx over a ten-year period. The two law offices pretty much split the clients between them based on rotating shifts in court. Each office represented about half of 587,000 cases that were looked at. The two organizations’ approaches were a bit different though, with Bronx Defenders offering more “holistic” services, with lawyers leading teams that could include social workers, housing advocates, investigators and other specialists to address the client’s “wider needs.” Legal Aid put more emphasis on the traditional role of criminal defense lawyers. The study — which should not be seen to pit the two approaches against one another — concluded that “the holistic approach reduced the likelihood of a prison sentence by 16 percent, and actual prison sentence length by 24 percent.” In drug and larceny cases, the effects on sentences were even greater, 63 and 72 percent respectively.
However, Legal Aid noted in press reports that the data came from the “broken windows” era of policing in New York City when arrest rates for low-level misdemeanors were historically high and caseloads, especially for Legal Aid citywide, were crushing. Since then, arrests are down and caseloads for defender organizations have been capped. Both organizations are asked to defend clients under the most difficult imaginable circumstances with exceedingly limited resources, and rely on the public-spirited devotion of smart, hard-working — and underpaid — attorneys to, in most cases, achieve just outcomes for their clients.
When Michael Cohen signed his plea agreement last Tuesday at the Southern District of New York, he was affixing his signature to one of the most important documents in recent memory: a sworn admission that he conspired with the president of the United States to violate a federal law to get him elected. But the document Cohen signed was in many ways pure boilerplate, the same language used in hundreds of pleas in the Southern District every year. Our office represents a lot of defendants in the Southern District and many of those cases end in plea deals like the one Michael Cohen received. So here is a quick primer on what the plea agreement means.
First, even though there is an agreement, no one knows what Cohen’s sentence will be. He is out on bail and he is probably hoping never to see the inside of a prison cell. There are sentencing considerations set forth in the agreement (much more on those below), but they do not bind the judge. Unlike in state court, federal defendants almost always plead guilty without knowing what their punishment will be.
Second, the document Cohen signed is not a cooperation agreement. A cooperation agreement is an agreement where the defendant promises to plead guilty and cooperate fully with the government, providing information and making himself available whenever prosecutors want to speak to him (in federal practice, we use the term “government” to mean the prosecutors). In return, the prosecutors promise to file a “5K motion” — a letter that allows the sentencing judge to avoid any applicable mandatory minimum sentence and may urge the judge to sentence below the sentencing Guidelines. In Cohen’s case, there is no mandatory minimum, so the 5K motion will not be as significant as it would be in, say, a drug trafficking case. When a mandatory minimum is charged, and the defendant is convicted (either by guilty plea or after trial), the only way to avoid the minimum sentence is by getting the government to file a 5K letter. In other words, because the crimes that Cohen was charged with do not carry a mandatory minimum, Cohen can still cooperate and get the full benefit he would have received with a cooperation agreement, but with fewer obligations. He might very well be cooperating, just without an agreement. If he is, he is putting his trust in the office prosecuting him. Seven government attorneys were listed on the plea agreement. He is trusting them to urge the judge to lower his sentence if he is helpful to the government. That’s fine, as long as everyone gets along as they work together to build a case against the president of the United States.
Getting out ahead of the difficult problem of prosecutorial misconduct, New York Governor Andrew Cuomo yesterday signed a bill creating a new commission empowered to investigate allegations against prosecutors. But in a Signing Memorandum dated today, Cuomo announced that the legislature had agreed to modify the bill in the next session to address concerns that it violates the New York State Constitution and could disrupt ongoing criminal cases. Specifically, according to the Signing Memorandum, the law will be immediately amended so that the new commission will not include active, sitting judges; the Appellate Division (rather than the Court of Appeals) will oversee its decisions; and the composition of the eleven-member commission will be “balanced.” In addition, and perhaps more concerning, the amendment will “protect active, pending investigations.” While it is not clear exactly what that means, I suspect that a person with a grievance against a prosecutor during an active criminal case would have to wait until the case is concluded to initiate an investigation by the new commission. That makes sense — but only as long as trial judges maintain their independence and are willing to provide a remedy for prosecutorial misconduct within the criminal case itself.
In the signing statement, the governor clearly endorsed the spirit of the bill as written: “At its core, our criminal justice system must fairly and consistently investigate and prosecute claims, convict the guilty and exonerate the innocent, without regard to race, ethnicity, gender, sexual orientation or any other protected classification. When any prosecutor consciously disregards that fundamental duty, communities suffer and lose faith in the system, and they must have a forum to be heard and seek justice.”
In the Daily News yesterday, Judge Frederic Block of the Eastern District of New York — who handled the Jabbar Collins civil suit that ended in a $13 million bill to taxpayers to compensate for police misconduct in Brooklyn — urged Gov. Cuomo to sign the bill creating a commission on prosecutorial conduct. Ethical, self-confident district attorneys will welcome the oversight. The District Attorneys Association of the State of New York is wrongheaded to oppose it.
Wrongful convictions are life-destroying not only to people wrongfully convicted but also to crime victims, especially victims of future crimes that could have been prevented had the right person been prosecuted in the first place. Prosecutors are almost never disciplined, let alone prosecuted themselves, even for the most egregious misconduct such as holding back exculpatory evidence or knowingly presenting coerced testimony.
Judge Block, who has overseen an active criminal docket for nearly a quarter of a century, writes that trial judges are not in a position to prevent prosecutors’ abuse: “If a prosecutor withholds or tampers with evidence, we probably won’t know about it. And even when we discover that prosecutors have committed serious constitutional violations, our power to directly sanction them is extremely limited.”
Your phone constantly tracks and records its location and transmits the information to your wireless carrier. Most phone companies keep that data — known as “cell site location information” — for up to five years. And until last week, it was pretty much available to the government for the asking.
Think for a moment what that means. If you went to a psychiatrist, a divorce lawyer, an AA meeting, a yoga class, or a 1980s dance party in the last five years, any policeman in the country could find out about it just by asking the phone company where your phone was at a given moment in time. It is as though the government placed permanent tracking devices on all of us. True, under federal law, the police had to ask for a court order under the Stored Communications Act based on a showing that the cell site data was “relevant and material to an ongoing investigation.” But that is a ridiculously low standard: pretty much anything an investigator wants to see can be tied to an investigation one way or another. Orders under 18 U.S.C. Section 2703(d) were, in practice, routinely granted by both state and federal courts.
All that changed last Friday when a fractured Supreme Court ruled in Carpenter v. U.S. that grabbing cell site data constitutes a search under the Fourth Amendment. That means that use of cell site data must be reasonable. For police investigations, a search is only reasonable if it is based on a search warrant supported by probable cause. Probable cause, the Court explained, is something more than the low standard in Sec. 2703(d): “relevant and material” just means cell site evidence “might be pertinent to an ongoing investigation,” whereas probable cause requires a “quantum of individualized suspicion” before police can start rummaging. So a Section 2703(d) subpoena is not enough to support obtaining cell site data. Mr. Carpenter’s conviction, based in part on cell site location data showing his phone was near several stores at the time they were robbed, was thrown out.