Locked up but Innocent?

Terrell McCullum did not commit a federal crime by carrying a shotgun and a rifle out of his ex-girlfriend's house.

From USA Today:

But he is serving a federal prison sentence for it. And the fact that everyone — including the U.S.Justice Department— agrees that he is legally innocent might not be enough to set him free.

• INTERACTIVE: The case of Terrell McCullum

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.

Many of them don't even know they're innocent.

The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun. The problem is that none of them had criminal records serious enough to make them felons under federal law.

Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."

These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons.

"It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."

It's also unusual. Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent. Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.

Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime. Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation. The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.

Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.

Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out.

"If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."

WHO CAN HAVE A GUN?

Terrell McCullum conceded in interviews that he has made plenty of bad decisions — including having the two guns that sent him to federal prison. But there is little dispute that his criminal record wouldn't now be serious enough to make having the guns a federal crime.

Even so, government lawyers have said in court filings that he should remain in the Farmville, Va., jail where he is serving the end of his federal sentence.

"At most," the Justice Department said in an April court filing , McCullum "has become legally innocent of the charge against him." In other words, the law may have changed, but the facts of his case didn't — he did possess the gun, and he had a criminal record — so he isn't entitled to be released.

His request to be released is still pending. "I don't know what's going to happen," McCullum said during a recent phone call. "I'm just praying on it."

The key to McCullum's innocence lies at the complicated intersection of state and federal criminal laws.

Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.

To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.

Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.

Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.

No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly.

"We're going to be addressing this for a while," he said.

The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.

But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?

Tight Budgets Lead to More Civilians Used for Policing

By Kevin Johnson, USA TODAY

Police agencies across the country are recruiting thousands of civilians for a growing number of duties previously performed by uniformed cops, in an unusual concession to local budget cuts.

The positions — some paid and others volunteer — are transforming every-day citizens into crime-scene investigators, evidence gatherers and photographers in what some analysts suggest is a striking new trend in American policing.

"It's all being driven by the economy and we should expect to see more of it," says University of Pittsburgh law professor David Harris, who analyzes law enforcement practices. "As budgets are squeezed, an increasing number of duties are going to be moved off officers' plates."

The chief opponents of the movement are police union leaders who believe cash-strapped agencies are lowering standards and undermining professionalism in the ranks. In some cases, the civilian positions circumvent pay and benefit obligations outlined in hard-fought labor contracts, says Bill Johnson, executive director of the National Association of Police Organizations (NAPO).

"The economy ought not to be pushing this," Johnson says. "You want the real deal when you call 911."

Among the agencies expanding civilians' roles:

• San Francisco. Police officials plan to hire 16 civilians to investigate burglaries and other property crimes. The $1 million pilot program and others like it are being designed to allow dwindling numbers of uniform officers to focus on more serious violent crime.

San Francisco Assistant Chief Thomas Shawyer says the civilians will save up to $40,000 per person in training, equipment and benefit costs required to hire an officer.

• Mesa, Ariz. Eight civilian investigators hit the streets in June 2009 when the department could not afford to hire uniformed police. The unit's members— some drawn from the customer service ranks of Southwest Airlines, Costco and Barnes & Noble, where they are accustomed to dealing with the public — respond to property-related offenses, including burglary, fraud and vehicle theft.

All eight, says Sgt. Stephanie Derivan, have been trained to lift fingerprints, photograph crime scenes, interview witnesses and victims. They do not carry guns.

Derivan says the department is saving an estimated $15,000 per investigator in salary.

"It's an efficient way to do business," Derivan says.

• Durham, N.C.: Teams of civilian volunteers help police canvass neighborhoods immediately after murders and other violent crimes to aid responding units and put potential witnesses at ease.

Durham Chief Jose Lopez says other volunteers in city-issued cars patrol shopping centers during the busy holiday seasons and conduct property checks for residents who are away from home.

"They are additional eyes and ears for us," Lopez says. "It effectively puts more people on the street."

Not everyone is so enthusiastic.

"For most people, the only contact they have with local government is the police department," says NAPO's Johnson. "At that point of contact, we want a full-fledged police officer dealing with the public."

National Legal Aid & Defender Association Library

On top of being a great resource for both civil legal aid and indigent defense with a wide membership base, the NLADA has a very developed forensic library with documents on such topics as accident reconstruction, DNA, blood spatter, controlled substances, and false confessions. In addition to that library, the NLADA has a very complete e-library with documents, briefs, articles, and studies on such diverse topics as the death penalty, management, and the aforementioned forensic library. They also accept document submissions.

The E-Library@NLADA.org is designed to serve as a versatile, Web-based information clearinghouse for civil and defender members of the equal justice community. The E-Library was launched in September 2001, and is being built by your submissions everyday. We hope that it will soon contain documents relating to the work of civil and defender advocates, including a lot of information about organizational, management and delivery issues, as well as substantive law, and a wide variety of other useful areas such as technology, training and conferences, government relations, communications, etc. It is a new and powerful tool for the equal justice community.

Fairness in Cocaine Sentencing: House of Representatives 3245 Moving Right Along

Good news on the Fairness in Cocaine Sentencing Act (House of Representatives 3245). The bill has made it out of committee and was ordered to be presented to the whole House of Representatives by a 16-9 vote in committee. The Bill would eliminate the 100:1 ratio in mandatory minimum sentencing for cocaine base aka crack cocaine. It is recommended that if you currently are defending crack cocaine cases that involve a mandatory minimum sentence, you defer trial/sentencing until the bill is voted on. For an overview of all bills pending before Congress involving mandatory minimums, check out FAMM, Families Against Mandatory Minimums. There, you can check out the bills to eliminate mandatory minimum sentencing and restore some fairness and justice to the sentencing process.

FAMM had this to say about the House Committee's vote: “Justice won today. Today’s vote represents another step to restoring basic fairness to our sentencing laws and to fulfilling the Constitution’s promise of equal justice under the law. We urge the full House to act quickly on this measure.” Read full press release here.

To keep track of bills in general, check out GovTrack. There you can search and view bills by Representative, subject, or number as well as follow the process and register to track events with email updates or news feeds. For the official government site, check out Thomas.

Racial Profiling?

Racial Profiling was in the news this past week due to the already infamous story of Harvard Professor Henry Louis Gates, Jr.'s arrest. The Professor was arrested after police came to his home to respond to a 911 call that two black men were attempting to enter the house. Turns out the two men were Professor Gates and a cab driver, who was helping the Professor into his home after returning from a trip. Here is an interesting take on the issue of racial profiling from the ACLU.

Interesting Article in Forbes About the Jail Crisis and How to Solve It

This interesting article on Forbes.com posted last week is worth a read. The article starts with discussion of the Harris County Jail in Houston, Texas, one of the largest jails in the United States. Last year, the Harris County Jail held an average of 10,000 inmates per day. Even more shocking, according to the article, is the Los Angeles County Jail which has the largest daily jail population of 19,836 in 2008. The budget costs of this type of incarceration is staggering:

Houston is far from alone. Amid budget crises, falling tax revenue and national unemployment approaching 10%, jails--usually city- or county-run holding facilities for those serving short sentences or awaiting trial--saw their populations grow nearly twice as fast as state and federal prison populations during the first half of the decade, according to a 2008 report by the Justice Policy Institute. The report says that local governments spent $97 billion on criminal justice in 2004, up 347% since 1982, while detention expenses climbed 519% to $19 billion.

The article goes on to discuss some alternatives being suggested as a means to lower pretrial costs and to lower the jail population. The National Association of Counties, for example, is calling on communities to invest more into pretrial services so that people charged with non-violent offenses who don't need to be confined can be quickly vetted for community programs and the mentally ill can get services.

Bill to Eliminate Mandatory Minimum Sentences for Drugs

On March 12, 2009, Representative Maxine Waters from California introduced into the House of Representatives H.R. 1466, the "Major Drug Trafficking Prosecution Act of 2009.'' The bill would eliminate all mandatory minimum sentences for drug offenses; curb federal prosecutions of low-level drug offenders; and allow courts to place offenders on probation or suspend their sentence. This bill could be a major step in the right direction towards a sensible drug policy. To add support to this bill, contact your Congressperson or check with Families Against Mandatory Minimums.

ABA Journal Article-"Incarceration Policy Strikes Out"

As noted on Sentencing Law and Policy the February 2009 ABA Journal published this article, entitled "Incarceration Policy Strikes Out: Exploding prison population compromises the U.S. justice system." The essay is by Ben Trachtenberg. Some excerpts:

At midyear 2007, U.S. prisons and jails held 2,299,116 inmates, meaning more than 1 percent of American adults were incarcerated. We top the world in per capita imprisonment, increasing our lead every year. Since 2000, while the total U.S. population increased by 7 percent, our prison population has grown by 19 percent. Our massive imprisonment costs needless billions and, perversely, hinders effective crime control. We need to re­duce our prison population....

A rational criminal justice system would — while shortening sentences of certain offenders — keep others out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely....

By adopting “smart on crime” programs instead of knee-jerk toughness, states can reduce crime while spending less. Reworked federal incentives would encourage smart state policymaking. While no one supports freeing rapists and murderers, warehousing every offender wastes money, destroys lives and contributes to our shameful status as the world’s leading incarcer­ator. We need Washington to reward good policy, not costly grandstanding that bankrupts our state governments and confines more than one of every 100 American adults.

Rachel Maddow Interviews ACLU's Jameel Jaffer on Guantanamo-Congratulates President Obama But Cautions Work Still To Be Done

Visit msnbc.com for Breaking News, World News, and News about the Economy

Kid Strip-Search Constitutional?

From ACLU Blog

You may have heard the infamous case of the 13-year-old girl who was strip-searched by school officials for allegedly possession ibuprofen (Advil). Perhaps as surprising as the strip search itself is today’s news that the U.S. Supreme Court has granted review in the case — meaning it will reconsider a lower court’s ruling that the student’s constitutional rights were violated.

The Issue Presented to the Supreme Court is: Whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy. ScotusBlog has the order and Petitions for Certiorari.

Due Diligence With Social Networks

From Law.com:

Gone are the days when due diligence, or a litigation background check, amounted to reviewing a resume and examining public records -- or even Googling!

Today, a witness, juror, expert or potential business partner is more likely to have a social networking site than a criminal conviction. Many painstaking attorneys would be sure to check for court records, but they might miss out on the additional benefits of this new information arena.

The Pew Internet & American Life Project reports that 66 percent of Internet users under the age of 30 have a social networking profile. CareerBuilder.com found that 37 percent of employees they surveyed did too. By contrast, only 9.5 percent of potential hires have criminal convictions.

Social networking activity can be quite revealing -- a kind of informal resume and kitchen table chat, not tailored to a specific event or situation, and very likely full of unguarded admissions.
Even if preparation of an Internet profile isn't your primary objective, regularly check these sites, particularly if you will be preparing a due diligence declaration. These days, judges know the value of a Google search and have begun to expect that as a standard practice in locating people.

Here's the scoop on the kinds of information to be gleaned from social networking sites. In general, people participate in interactive Web sites with their friends, co-workers, school and professional colleagues, as well as Internet-only acquaintances. The self-generated content, along with comments from other participants, provide insight into a person's values, activities, biases and self-image. Most people mention past education and employers, as well as other people in their network, interest organizations and leisure activities. A breezy reflection on a summer vacation spot may point to a place to search for state and county court records.

Full article here.

Unarmed Man Shot on BART Platform

On New Year’s Eve, Oscar Grant was shot execution-style by a transit police officer in Oakland, California. He was shot in the back while face-down on a subway platform–unarmed and posing no threat. A disturbing video showing what happened, along with a petition to have the California Attorney General and Department of Justice look into the case is available here.

Oscar Grant is the third man murdered by BART (Bay Area Rapid Transit) police in the past 17 years. All three victims were Black and none posed a serious threat. In each case, BART and county authorities have failed to hold the officers accountable.

Key DOJ Spots-Stay Tuned

From Sentencing Law and Policy

More news about likely key players in Obama Administration's Justice Department

The Blog of Legal Times has this new post titled "More Names Emerge for Key DOJ Slots." Here are snippets that should be of particular interest to those interested in key players for the federal criminal justice system:

We're getting a clearer picture of the new Justice Department’s top ranks, as Attorney General nominee Eric Holder Jr.’s confirmation hearings begin.

The leading candidate to head the Justice Department's Criminal Division, Lanny Breuer, who is Holder’s partner at Covington & Burling, was named by the The Washington Post last week. The BLT has learned of a few more frontrunners for top DOJ slots:...

Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, is the top pick for principal deputy solicitor general, the office’s No. 2 spot, the sources say. From 1998 to 1999, Katyal (Yale Law) served as Holder’s national security adviser in the Justice Department.

Judge Fines Spokane County Washington Prosecutor's Office

The Spokane County prosecutor’s office was sanctioned Monday and fined $8,000 by a judge angry over mishandling of a critical detail surrounding a home-invasion case that could send several men to prison for the rest of their lives.

At issue was a last-minute change Monday by Deputy Prosecutor Eugene Cruz, who altered the date – from April 15 to April 17 – that the robbery and attempted first-degree murder occurred on, effectively gutting defense preparations for the trial. At least two of the four men charged with the crime had strong alibis for the original date that prosecutors used in filing criminal charges, including one who was attending a court-ordered alcohol monitoring test.

Full Story Here

How Technology May Soon "Read" Your Mind

From 60 Minutes:

How often have you wondered what your spouse is really thinking? Or your boss? Or the guy sitting across from you on the bus? We all take as a given that we'll never really know for sure. The content of our thoughts is our own - private, secret, and unknowable by anyone else. Until now, that is. 

As correspondent Lesley Stahl reports, neuroscience research into how we think and what we're thinking is advancing at a stunning rate, making it possible for the first time in human history to peer directly into the brain to read out the physical make-up of our thoughts, some would say to read our minds. 

Full story here.

States' Budget Crises Prompting Urgent Prison Policy Reforms

From The Huffingtonpost.com

Their budgets in crisis, governors, legislators and prison officials across the nation are making or considering policy changes that will likely remove tens of thousands of offenders from prisons and parole supervision.

Collectively, the pending and proposed initiatives could add up to one of biggest shifts ever in corrections policy, putting into place cost-saving reforms that have struggled to win political support in the tough-on-crime climate of recent decades.

"Prior to this fiscal crisis, legislators could tinker around the edges _ but we're now well past the tinkering stage," said Marc Mauer, executive director of the Sentencing Project, which advocates alternatives to incarceration.

Full story here.

Remembering Yesterday Looking Towards Tomorrow

This coming week marks the seven year anniversary of prisoners at Guantanamo Bay, Cuba. Amnesty International and ACLU groups are holding a candlelight vigil on January 13, 2009 to remember what rights we have lost, and to look towards how we can start to undo the damage with the new year (and new administration).

For more information, click here.

New Sentencing Commission Reports

Two reports released by the Sentencing Commission this week: "Overview of Federal Criminal Cases, Fiscal Year 2007" and, "Changing Face of Federal Criminal Sentencing: Seventeen Years of Growth in the Federal Sentencing Caseload" (both available here). The first is a broad based reference on the types of federal criminal cases and the corresponding sentences; the second is a demographic make-up of federal offenders from 1991 through 2007 following trends and sentences over the last seventeen years. Both have valuable information for the federal practitioner.

Marketplace Wants To Hear From You

Marketplace wants to hear from you

by Gideon

Marketplace, a program of American Public Media (the second largest producer of public radio programming in the country, presumably behind NPR, and producer of A Prairie Home Companion) wants to hear from legal professionals about how the economy is impacting them. From the e-mail I received earlier today:

How is the financial crisis affecting the legal profession?

Corporate law firms have proven adept at navigating financial downturns in the past, but this time things appear to be different. Two venerable San Francisco law firms have collapsed, firms around the country are shedding associates and lateral partners are now available at bargain salaries.

Has the financial crisis changed the way you work?

Big firms aren’t the only ones feeling the pinch. Legal aid services and public defenders around the country are preparing for budget cutbacks – right at a time when their services are needed most.

As part of our ongoing coverage of the financial crisis, Marketplace wants to know how the financial crisis has affected your practice.

Looks like all you have to do is go here and submit some information (as much as you like). Given the growing financial crisis in the country and the impact on legal services, it is important that the fight for money gets some coverage. Whether you respond or not, it is something worth discussing and passing along.

Excellent List: 10 Things I Didn't Learn In Law School

From Gideon

Look, law school taught me a fair bit. I won’t lie. It taught me that even grown-ups can get drunk and get in fights at local bars. It taught me that my fellow lawyer isn’t much smarter than me and will one day become really famous. It taught me that you can fake your way through almost anything.

But here are ten things it didn’t teach me:

1.Nobody ever uses the phrase “black letter law“. Seriously. Lawyers who do use the phrase “black letter law” are usually laughed at by cliques of other lawyers. This is an invention of professors, I’m sure, meant to intimidate and harass poor first year students. Black letter law? Is that some Rules of Court book?
2. That you will forever be haunted by names of cases, but not remember a damn thing about the case itself. Who here can tell me about Helicopteros or International Shoe or Pennoyer or Dudley and Stephens? (Okay, that last one is really cool - it’s about cannibalism). Wasn’t there a Vana White case?
3. How to pick a jury.
4. There is no box. Law school professors keep telling you to think outside the box. What they don’t tell you is that there is no box.
5. That law review leads to document review. If you want to do real work, take a clinic or something.
6. Your clients will hate you. They will think they are smarter than you. They will try to tell you what to do.
7. How to deal with #6 above.
8. Most judges haven’t practiced in a while, so forgive them if they make stuff up as they go along.
9. Caselaw and precedent may or may not mean much until you get to an appellate court. And even then…
10. Finally, no matter how long you practice or what you do, there will always be more to learn and ways to better yourself.

What have you not learned from law school?