Dear Defender Nation,
Fall is upon us and October has begun. So too has the next Supreme Court term, and back again is in-person argument. One Justice was absent in person due to a positive COVID test, and one Justice wore a mask while presiding. Three criminal cases were argued this week:
- Wooden v. United States, No-20-5279 (Arg. Oct. 4, 2021): Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act. See merits briefing here and argument transcript here.
- Brown v. Davenport, No. 20-826 (Arg. Oct. 5, 2021): Whether a federal habeas court may grant relief based solely on its conclusion that the test fromBrecht v. Abrahamson is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th, and 10th Circuits have held. See merits briefing here and argument transcript here.
- Hemphill v. New York, No. 20-637 (Arg. Oct. 5, 2021): Whether, or under what circumstances, a criminal defendant, whose argumentation, or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause. See merits briefing here and argument transcript here.
These cases are important to our community because they impact the manner in which we protect and vindicate our clients’ constitutional and statutory rights. For example, Wooden will interpret an important ACCA provision. Petitioner William Wooden was convicted by a jury of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). This crime is usually punishable by up to 10 years’ imprisonment. But under ACCA, a client is subject to a 15-year mandatory-minimum sentence if he has “has three previous convictions … for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” At sentencing, the government contended that Mr. Wooden was subject to ACCA’s enhanced sentence because of ten prior “violent felony” convictions—burglary of ten ministorage units inside a single structure on the same date. Wooden objected, arguing that the ministorage burglaries had been committed on the same occasion and thus “should be grouped as one conviction.” The district court agreed with the government and sentenced Wooden to 188 months in prison as an armed career criminal, relying on Sixth Circuit precedent that prior offenses are automatically deemed as having been committed on occasions different from one another under ACCA if “it is possible to discern the point at which the first offense is completed and the subsequent point at which the second offense begins.” The Sixth Circuit affirmed. The Court will now decide when offenses are “committed on occasions different from one another” under ACCA.
The Training Division is closely monitoring the progress of criminal cases pending in the Supreme Court and plans to bring you timely and relevant training when the Supreme Court issues its decision. You can watch the recordings of both recent webinars on Borden v. United States, 141 S. Ct. 1817 (2021), which held that a criminal offense that requires only a mens rea of recklessness cannot count as a “violent felony” under the Armed Career Criminal Act’s (ACCA’s) force clause or elements clause. Recordings of the live webinars with Mr. Borden’s counsel of record covered: (1) The Force Clause Post-Borden: Going Forward and Backward (focused on cases not yet final); (2) The Force Clause Post-Borden Part 2: Application of Borden to Cases on Collateral Review. The webinar recordings and PowerPoint presentations are available for viewing on the password side of fd.org, respectively, here and here.
New CJA Panel Attorney Resource Website
CJA panel attorneys frequently require the assistance of paralegals, investigators, and other service providers to adequately represent their clients in appointed cases. See 18
U.S.C. §3006A(e). However, finding appropriate service providers can be difficult in many locations. This website is designed to assist with connecting panel attorneys with service providers who work with CJA-appointed counsel. While the site currently provides information on paralegals, other service provider types may be added in the future.
Below are links to a national compilation of private paralegals who (1) have previously been authorized by a federal district court to provide paralegal services in CJA cases and (2) are willing to provide paralegal services in CJA cases. The first list is a national directory of paralegals organized name and the second is organized by state.
Please Note: Inclusion on this resource site is in not an endorsement by the DSO or NLST. The attorney of record on a CJA panel case is responsible for assessing the suitability of service providers and supervising the work done by all service providers, including paralegals, under ABA Professional Rules of Responsibility 5.3. Be sure to contact a paralegal directly to learn more about their skills, prior work experience, and to obtain references.
Webinars and CLE
The Training Division continues to monitor COVID-19 developments, particularly in light of the new cases of the highly contagious delta variant. Tentatively, we plan to return to in-person training in the next calendar year if travel is safe and permitted. In the meantime, we are pleased to continue presenting free interactive virtual training programs to assist with your training needs and CLE fulfillment.
Please register and save the date for our upcoming programs:
- Sentencing Advocacy Workshop – Virtual Program on October 18-26, 2021. Waitlist only here.
- Trial Skills Workshop / Crimes Decoded: Emerging Digital Litigation Technology Strategies (Virtual) on October 25 – November 2, 2021. Register here. Draft agenda available here.
- Dancing in the Dark: Fentanyl Analogues on November 3, 2021 at 2:00-3:15 p.m. (EDT). Register here.
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- Since fiscal year 2016, there has been a massive 5,725% increase in federal prosecutions involving fentanyl analogues. Across the country, these substances are cropping up in many different types of drugs prosecutions. But what is a fentanyl analogue, exactly? This presentation will explain what fentanyl analogues are, recommend strategies for building your defense, and identify sentencing arguments to help you advocate for lower sentences for your clients.
We recognize the challenges concerning the training of new defense professionals joining Defender offices or working under the Criminal Justice Act Panel. The recordings of our 13-part Fundamentals of Federal Criminal Defense program, which is primarily designed for those new to federal criminal defense practice but is a wonderful refresher for everyone, are available online.
Fd.org Updates
A Missouri man convicted of beating three people to death during a 1994 convenience store robbery was executed on Tuesday night despite calls for clemency from Pope Francis and other supporters who said the man’s intellectual disabilities made the execution unconstitutional.
President Joe Biden last Thursday announced ten new nominees for seats on the federal trial courts and touted the diverse personal and legal backgrounds of the picks, who include three with Asian American or Pacific Islander heritage as well as two Hispanic and two Black individuals. The new slate brings Biden’s total number of judicial nominees to 53, according to a release from the White House. They include Biden’s first nominees in Georgia, Ohio, New York, and New Hampshire. The slate also includes nominees with backgrounds as public defenders and civil rights lawyers.
During a recent hearing in a Roanoke, Virginia federal court, the defense attorney was making an aggressive attack on the testimony of a Henry County sheriff’s deputy who said he found the defendant driving a pickup truck full of firearms. The judge wasn’t listening — literally. In a highly unusual move, the judge ended a tense exchange by standing up and walking out of the courtroom without calling a formal recess, leaving Schiffelbein to make his arguments to an empty bench. The attorney later filed a written objection, saying the court violated the basic principle that every defendant — including his client who faces a charge of possessing firearms as a convicted felon — is entitled to have their case heard. “It conveyed the message to [the client] that whatever his counsel had to say did not and would not matter,” the document states.