Fighting for compassion, a guest post by Mikayla Espinosa

Fighting for Compassion

Guest Post by Mikayla Espinosa

In a recent article, the Wall Street Journal highlighted efforts by former federal judge John Gleeson and Marisa Taney—a former law clerk to Judge Kathleen Williams—to obtain compassionate release for certain individuals convicted of violating the federal firearm law, § 924(c).

The work is part of a national sentencing reform movement, designed in part to address racial disparities in the criminal justice system. The WSJ reports that “[a]bout 94% of the people convicted of multiple counts under section 924(c) in fiscal year 2016 were Black or Hispanic.”

Their strategy takes advantage of two provisions of the First Step Act, a 2018 law that itself was a major step in sentencing reform. First is a provision allowing inmates whose requests for compassionate release are denied by the BOP to appeal the decision to a federal judge. Second is the Act’s reduction of mandatory sentences for people convicted of multiple § 924(c) counts after the statute was passed.

Gleeson and Taney have filed motions on behalf of several inmates who were convicted before the statute’s passage, seeking compassionate release from their sentencing courts. As the WSJ puts it, they “began interpreting ‘extraordinary and compelling’”—the standard for granting compassionate relief—“in an expansive way: Harsh mandatory sentences, since eliminated, are a valid reason for compassionate release.” The novel interpretation has been uniformly opposed by the government, which views it as an end-run around Congress’s decision not to make the First Step Act retroactive.

One of Gleeson and Taney’s motions was filed in the Southern District of Florida before Judge Dimitrouleas earlier this year on behalf of William Kinsey (99-cr-08078). Kinsey and his co-defendant committed a series of armed robberies in which no one was harmed. His co-defendant was found to be “equally culpable” for the robberies. He pled guilty, testified against Kinsey, and ultimately received an adjusted sentence of 10 years. Kinsey was sentenced to 137 years. The discrepancy resulted in large part because the government dismissed most of the co-defendant’s counts and none of Kinsey’s. Thus, Kinsey received the mandatory, consecutive sentences imposed by the court.

At the time Gleeson filed the motion on Kinsey’s behalf, Kinsey had already served 20 years in prison and was a model inmate. Judge Dimitrouleas quickly denied the motion, concluding that Kinsey’s requested relief would be available only if Congress amended the First Act to apply retroactively to multiple § 924(c) convictions.

Gleeson and Taney have had better luck elsewhere: They’ve helped win the release of 11 inmates so far.

The full article is here:

https://www.wsj.com/articles/former-judge-seeks-to-shorten-mandatory-prison-terms-he-once-imposed-11606859191

Episode 6, For the Defense: F. Lee Bailey for Sam Sheppard

 I'm really excited about this week's podcast episode of For the Defense. You'll hear legendary criminal defense lawyer F. Lee Bailey discuss his representation of Sam Sheppard (which includes going all the way to the Supreme Court and then for a new trial).  At the time, there was no bigger case in the history of American criminal law -- it even inspired the TV show and movie, The Fugitive. These pictures show a young Bailey with Sheppard, and of course the picture at the bottom of this post is Bailey with O.J. Simpson and Johnnie Cochran as the verdict was read. You can catch this episode and all episodes on our podcast website here. The Apple platform is available here, and all other platforms can be accessed here.

This is the finale of Season 1 of the podcast. I have really enjoyed doing the interviews and speaking to such great lawyers.  I've also enjoyed hearing from so many of you about your own trial experiences and other take-aways from the interviews.

Season 2 is already in the works and we plan on launching sometime in mid-January with the premiere episode with Alan Dershowitz.  We will also have a bonus/holiday episode with Hank Asbill discussing the fascinating trial and appeal involving Virginia Governor Robert McDonnell that will likely air on December 22.  I need your help to continue the momentum of the podcast, so please subscribe and leave comments!

If you're new to the podcast, you can learn more from this CourtTV spot about it. If you or a friend would like to receive email updates, please sign up here.

Thank you again for your continued support! --David

Hosted by David Oscar Markus and produced by rakontur

Van Buren in the Supreme Court

 This is the case out of the 11th Circuit dealing with the Computer Fraud and Abuse Act.  Although the 11th Circuit vacated Van Buren's conviction for honest services fraud, it ruled against him on the computer fraud issue.  The question presented is:

Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

SCOTUSBlog has a preview of the case:

Nathan Van Buren was a police officer in Georgia authorized to search computerized records about license plates for law-enforcement purposes. Falling for a sting conducted by the FBI, he searched those records for private purposes (at the request of an FBI informant who offered to pay him several thousand dollars for the information). The government charged Van Buren in federal district court with two counts of fraud: computer fraud under the CFAA and honest-services wire fraud under another statute. A jury convicted him of both counts. The U.S. Court of Appeals for the 11th Circuit vacated the wire-fraud conviction but upheld the conviction under the CFAA. Van Buren appealed to the Supreme Court last December.

All agree that the case turns on the vague language of the CFAA, which sanctions any person who “exceeds authorized access” on a computer. The statute defines that term as meaning “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Van Buren argues that the statute applies only if the defendant obtains information that he was under no circumstances entitled to obtain. From Van Buren’s perspective, a defendant who obtains information that he had a right to obtain from the computer for certain purposes (like the license-plate records at issue here) should not face federal criminal sanctions solely because the particular way in which he obtained the information was inappropriate (as it was here). Van Buren doubtless faces sanctions for violating the police department’s computer-use rules, but that is a matter for the department, he says, not for a U.S. attorney.

The government argues that Van Buren’s reading of the CFAA eliminates the word “so” from the relevant statutory phrase, which criminalizes obtaining information that the defendant “is not entitled so to obtain or alter.” For the government, the inclusion of “so” in that phrase means it is a crime if, as is the case here, the defendant was not entitled to obtain (or alter) the information in the particular way that the defendant did. A potential problem with that reading as a textual matter is that nothing in the earlier phrases of the statute suggests that “so” is meant to incorporate into the CFAA the kinds of limitations on computer access that are at issue here (and in numerous other prosecutions under the CFAA) – specifically, access limitation that derive from employment contracts, terms-of-use policies or other private agreements.

A failed example of jury trials during Covid

 One federal court in the Eastern District of Texas tried to conduct a jury trial.  13 people now have COVID-19.  From Above the Law:

An Eastern District of Texas breach of contract case between plaintiff ResMan LLC and defendant Karya Property Management LLC and presided over by Amos L. Mazzant II has been sidelined by an outbreak of the novel coronavirus, as reported by Law360. How bad is the outbreak? Well, at most recent count 13 people. Yikes:

David O’Toole, clerk for the Eastern District of Texas, told Law360 on Tuesday that the number of trial participants who tested positive for coronavirus had increased from at least seven on Friday to 13 confirmed positives Tuesday. The positive cases include two jurors, at least three members of the defense team, a “handful of folks” on the plaintiff’s team, and three or four court staffers.

The outbreak occurred after testimony in the trial had begun:

Jury selection was held on Nov. 2 and the trial was scheduled to last for two weeks. Jurors heard testimony every day last week and on Nov. 9, according to court records.

After lunch on Nov. 9, the judge advised the jurors and attorneys that a juror who had recently been excused tested positive for the coronavirus.

The judge then suspended the trial and asked participants to get tested and provide the court with results as soon as they were received. The judge advised participants to consult with their physicians about self-quarantining.

As a result there are only five jurors currently willing to continue with the trial, and the defendants aren’t willing to move forward with less than six jurors, so… yeah, Judge Mazzant declared a mistrial.

OY!

For the Defense Episode 5: H.T. Smith for Aubrey Arthur Livingston

This week in For the Defense, we have the wonderful H.T. Smith, a criminal defense lawyer, activist, and founding director of the trial advocacy program at FIU Law School.

In this episode, H.T. discusses what it means to be a criminal defense lawyer in the context of an unspeakably grisly first-degree murder case in which his client, Aubrey Arthur Livingston, was accused of participating in the killing of five people, including two small children.

H.T. tried the case before a Broward County, Florida judge who appeared to be looking forward to sending Smith's client to "Old Sparky," the electric chair in Florida that was used to inflict the ultimate punishment. Smith fought two trials and an appeal all the way to the Florida Supreme Court as the only barrier between his client and electrocution. 

You can catch this episode and all episodes on our podcast website here. It seems like Apple Podcast is the most popular platform, which is available here. All other platforms can be accessed on here.

I'm extremely grateful that the podcast is starting to gain traction, which is because of your great feedback and comments (please continue to subscribe and leave comments!). A few days ago, CourtTV picked it up and did this segment. Check it out!

 

Thanks again for your continued support of this project.

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