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Rebel Thinking & Defense

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I am going to digress from a legal analysis this month. When not practicing law, I enjoy, among other activities, walking and gardening. Both lend themselves to listening to podcasts. One of my favorite podcasts is “Hidden Brain” on NPR. The host, Shankar Vedantam, “uses science and storytelling to reveal the unconscious patterns that drive human behavior, shape our choices and direct our relationships.” You can imagine that this would be insightful to a trial attorney!

A recent episode entitled, “Rebel with a Cause” discusses the importance of being willing to break out of the norm. The old adage, “Think outside the box” has truth. The truth is that it is important to reevaluate our suppositions from time to time. Nowhere is this truer than in defending persons accused by the mighty government.

What does this have to do with me?

Recently, I was approached by a client who was represented by one of the preeminent Atlanta attorneys. The attorney had negotiated what, under nearly all circumstances, would have been a terrific plea agreement to avoid significant time in federal prison. However, the plea of guilty would result in time in federal prison, the client’s green card not being renewed, and, ultimately, deportation.

My client hired me to replace this other high-profile attorney. I looked at the case with a fresh set of eyes and found the problem. I filed a motion to dismiss the indictment. Before a United States Judge ruled on my motion, the government dismissed the charges!

Take a Fresh Look

Back to the “Rebel” podcast. There is no need to be the proverbial “bull in the china cabinet.” I have encountered those attorneys. They usually don’t last long. It is also inappropriate to be the defense attorney who is the “waterboy” for the government. Do I even have to comment on what we think of that “attorney?”

It is critical to look at every case as if it’s the first case. Bring your experience to the case. It’s invaluable to bring experience to a case. But, it’s also important to look at it and think about it as if it is the first case you have ever reviewed.

The other experienced attorney just followed the routine. He saw evidence of guilt in the form of a wiretap and phone calls. He then negotiated what would otherwise be an excellent plea disposition. However, he did not see the glaring defect in the case that would require dismissal.

In “Hidden Brain” terminology: Experience + Fresh (Rebel) Thinking = Best Chance of Success!

by John Lovell

Privacy Rights- Carpenter vs. United States

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by John Lovell

Last month, the United States Supreme Court ruled in favor of the privacy rights of individuals. The Government, without a warrant or a showing of probable cause, issued an order to a cell phone company to provide Timothy Carpenter’s cell site data. The Government sought to gather the extensive records, including the location of Carpenter’s phones. The Supreme Court, in a 5-4 decision, found that Mr. Carpenter had a privacy right in his phone records. For the Government to seize these records, the Government needed to present to a magistrate a warrant based on sworn testimony establishing probable cause. The Court noted that a significant factor causing the War for Independence was Britain’s use of warrantless searches … Americans have never been fond of warrantless searches!

Do not be quick to conclude that this ruling makes it necessary for the police to obtain a warrant for all types of stored records. Your privacy could still be affected. Previously, the Court has held that a warrant is not necessary to obtain records of the numbers called by a cell phone-not the content of the calls but just the fact that the “target” phone called particular numbers at particular times. The Court has also held that other stored records such as bank records may be obtained without a warrant. A couple of years ago, the Court ruled that a warrant is required to place a GPS tracking device on a vehicle. The critical distinction that the Court has made is in information that reveals the location of the subject. We have a greater expectation of privacy in where we are than is more typical records such as numbers called and even bank records. Protect your privacy rights today and call Peachstate Lawyer for your FREE consultation!

The Commerce Clause to the United States Constitution and Criminal Law

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I am interrupting my review of sentencing law to write about the “Commerce Clause” of the United States Constitution. Recently, I listened to an excellent podcast on the Commerce Clause. I encourage you to listen to is here.

The commerce clause is the legal fiction used to grant the federal government virtual unfettered jurisdiction in matters traditionally reserved to the states. The producers of the podcast at More Perfect note that the Commerce Clause was used effectively during the civil rights era to bring freedom to the oppressed. What they did not have time to develop is that the commerce clause has since been used to lock up a disproportionate number of African Americans. Until relatively recently, crime was largely a matter for states. Today, the federal government has gone beyond its traditional role to prosecute street-level, hand-to-hand drug sales, local fraud, and a host of other crimes that do not have a meaningful impact on interstate commerce.

Since the federal government got involved in the prosecution of what was typically thought of as local crime, the number of persons incarcerated in federal prisons has risen drastically. For instance, from 1980 to 2015, persons incarcerated in federal prison increased from 22,037 to 185,917, a 743% increase. Federal incarceration for drug offenses during the same period is even more severe with a 1826% increase. This prison growth occurred while the U.S. population increased by less than 50%. And, with over 10,000 attorneys, DOJ is the world’s largest “law firm!”

So, while most Americans were pleased to see the federal government use the commerce clause to desegregate the south, today it is frequently used as a means of inserting the federal government into local criminal matters. You will have to read my recent blog on mandatory minimum sentences to appreciate the impact of the federal government being involved in low-level and local crimes.

Mandatory Minimum Sentences in Federal Court

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by John Lovell

If you’ve been charged with a federal crime in the state of Georgia, many federal crimes require a “mandatory minimum” sentence. Mandatory minimum sentences reflect a “one-size-fits-all” form of justice. It is the legislative and executive branches of the government imposing arbitrary sentences without information pertaining to the person convicted or the specifics of the crime. Mandatory minimum sentences strip the judge hearing the case from deciding what is a just and fair sentence.* Mandatory minimum sentences range from 2 years to life without parole. Families Against Mandatory Minimums has compiled a list of crimes and mandatory minimums. These mandatory minimum sentences are not just unique to federal crimes in Georgia, but are mandatory all across the country.

There are some ways to avoid mandatory minimum sentences. First and foremost, don’t commit a crime that exposes you to man mins! Obvious, right? If you are charged, seek an attorney who is familiar with federal law. I have seen many an attorney counsel a client to plea guilty, unaware of the mandatory minimum sentence. I have seen this where a life sentence was imposed. There are few circumstances where a person would voluntarily agree to be sentenced to life in prison, particularly for a drug offense.

Also, it may be possible to negotiate a plea to a charge that does not require a mandatory minimum sentence.

Finally, learn whether an exception applies that allows the judge to NOT impose a mandatory minimum sentence. Next month I’ll write about the most common exception under federal law, the “safety valve.”

*One of many examples: I had the privilege of representing a young man on appeal who received a mandatory life sentence for delivering drugs. There was no dispute but that he was a “mule.” I did not represent him at trial but read the transcript of the sentencing hearing where the conservative, George W. Bush appointed judge, described the mandatory sentence as “savage, cruel and unusual.” I filed a federal habeas motion and was able to get the young man’s sentence reduced to a term of years where he will, in the coming years, be free and not lose his life to a mandatory minimum sentence.