The End of Absolute Immunity for Prosecutors

Another outstanding feature by The Marshall Project.

It’s written by a senior federal trial judge in New York. For 23 years, he’s sentenced the likes of murderers, rapists, gangsters, and fraudsters—some to prison for the rest of their lives. But he says it’s time to put an end to absolute immunity for prosecutors.

Absolute immunity is what it sounds like. It doesn’t just protect prosecutors who follow the rules but make mistakes. It protects those who knowingly and purposely break the rules.

Believe it or not, they can do all kinds of dirty deeds to convict you—even to frame you, on purpose—and you have no right to sue them for it. Crazy, huh? They can withhold evidence, put on false evidence, coerce witnesses to testify against you, or worse. No matter the facts, you have no civil rights or remedies against them as a matter of law.

But as the author notes, cops don’t have absolute immunity; they have a form of qualified immunity, so what’s the difference?

For an overwhelming majority of prosecutors, there would be no difference.

But truly bad actions should suffer civil and criminal consequences for their obstruction of justice. For more on why, see this blog post by the American Constitution Society.

When You Walk a Mile in Their Shoes

You may never serve on a jury, but suppose you did.

How would you feel—how would any of us feel—if we voted to convict someone innocent?

This person knows. In 2009, she voted to convict a 17-year-old boy for murder based on the testimony of one eyewitness. The witness and victim were friends, and they were in a car at the time, with the victim driving. They turned a corner and almost hit a pedestrian, which led to a confrontation that ended when the guy pulled a gun, shot the victim, and fled. At trial, the witness took the stand and identified the boy, and that was enough for her and nine other jurors in a state that only required ten of twelve to convict.

When she learned he was innocent, she signed an affidavit that helped free him after nearly ten years in prison. Here’s a local story about his exoneration.

Now when she thinks back to the trial, she sees things differently.

She remembers the boy sitting in court: slumped over, doodling on paper. Back then, she thought his body language seemed cavalier, like he knew he did it but didn’t care. Now she wonders about that, and she sees defeat and despair instead.

She remembers the eyewitness seemed so sure of his identification. Back then, she thought it made sense: If she had seen her friend get murdered, she’d remember who did it, too. Since then, she’s learned that eyewitnesses are often wrong, especially in times of stress and trauma. And yet by the time of trial, they may testify with total certainty.

Today, she wants to sit with the boy and tell him she’s sorry.

And she hopes she never has to be in that situation again.

But if it were me or my loved one, I’d want her on that jury.

Judge Regrets Sentencing Teen to Life Without Parole

Speaking of harsh penalties, how’s 241 years in prison for a 16-year-old boy?

Well, it happened to this boy twenty years ago. The judge who sentenced him told him he’d die in prison. She told him he wouldn’t even be eligible for parole until 2091, when no one he knew would be alive, anyway.

One can forgive the judge her anger. The boy and an 18-year-old friend had robbed a group of six people and shot at two of them. The older boy led the way, but they both had a gun, and they each fired a shot. They could’ve killed someone, but no one was hurt. Then they carjacked and robbed another woman before letting her go. The 18-year-old pleaded guilty and got 30 years. He’ll be eligible for parole this year. The 16-year-old went to trial and lost. He’d already compiled a juvenile record to that point, and the judge was steamed.

But she deeply regrets her sentence now, and she’s joined the boy’s lawyers in asking the U.S. Supreme Court to overturn it.

Their argument is simple. The Court held in 2010 that it’s unconstitutional to sentence a kid who didn’t kill anyone to life without parole. Simply and logically, the same must go for a sentence that doesn’t say “life without parole” but does the exact same thing.

Feds Raise Healthcare Penalties Again

If you’re a healthcare provider who takes Medicare or another federal program, take note.

We didn’t get a government shutdown, but the budget law from last week more than doubled the civil and criminal penalties you face when the government accuses you of fraud, waste, or abuse. To see for yourself, click the link and scroll all the way down to section 50412. You need to go about three-fifths of the way down.

The maximum civil penalties have doubled and, in some cases, more than doubled. Where they used to be $2,000 per violation, they’re now $5,000; where $5,000 before, they’re now $10,000; if $10,000, they’re now $20,000; if $15,000, now $30,000; and where they were $50,000 before, they’re now $100,000. Generally, the penalties apply per violation.

The maximum criminal penalties have doubled or quadrupled. A felony charge that used to threaten five years in prison and a $25,000 fine now carries up to ten years in prison and a $100,000 fine. A misdemeanor charge that carried a $2,000 or $10,000 fine could now cost $4,000 or $20,000 respectively in fines alone.

These changes apply to conduct after the law was enacted on February 9, 2018.

New California Criminal Laws: Part Deux

To conclude the series, here’s the fab five we promised last week.

Kids age 15 or younger must talk to a lawyer before the police interrogate them. This is Senate Bill 395. It amended the Welfare and Institutions Code to require that kids consult a lawyer before they waive their Miranda rights. They can do the consultation in person, by phone, or by video, but they can’t waive it even if they want to. If they don’t get one, a court may exclude their statements from evidence at trial (if it gets there). But it may not as well. And there are exceptions for emergencies. The law expires on January 1, 2025.

Kids whose juvenile cases are dismissed or diverted get their records sealed. This is Assembly Bill 529. It amended the Welfare and Institutions Code to seal records from a juvenile case automatically if the case is dismissed or the kid successfully completes a diversion program. It takes these cases and treats them the same as another recent law that applies when kids complete probation.

More kids get a crack at sealing their records. This is Senate Bill 312. It amended the Welfare and Institutions Code to give kids who weren’t even eligible before a chance. It applies if you were found to have committed an especially serious or violent offense when you were at least 14 years old. Now, a court may consider your petition to seal under limited circumstances. It doesn’t apply if you were required to register as a sex offender. And your records can still be looked at by the courts or district attorney if you get in trouble again. For more on sealing juvenile records, see here.

The state continues to implement Prop 57. Remember Prop 57? It required judges to decide whether a kid age 14 or older could be prosecuted in adult court, and it promised a shot at parole for nonviolent offenders who’ve served the bulk of their sentence. But it also aimed to expand the credits an inmate could earn through good conduct or specific rehabilitative programs. Now, the Department of Corrections and Rehabilitation is finalizing its regulations under Prop 57, and you can find more information about them here.

Your Uber, Lyft, or taxi driver can’t have a blood-alcohol level more than .04. This is Assembly Bill 2687, which passed in 2016. It amends the Vehicle Code to apply the lower limit for truckers and other commercial drivers. The law is effective July 1, 2018.

New California Criminal Laws in 2018

We’ve already touched on four of them: Recreational pot. A ban-the-box law for employers. An overhauled sex-offender registry beginning in 2021. New rules for picking juries in civil and criminal cases.

Here are five more this week, with five more to come next week.

Lawyers can advise clients on cannabis. This is Assembly Bill 1159. It amended the Evidence Code to protect attorney-client privilege and confidentiality for legal services rendered in compliance with state and local law. The lawyer must also advise the client on the current conflict under federal law. Lawyers are already advising the cannabis industry, of course. But generally speaking, there’s no attorney-client privilege for legal services that are sought to help someone commit a crime or fraud. It’s the famous crime-fraud exception to the privilege. This law makes clear that, notwithstanding federal law, there’s no crime-fraud exception here just because it’s pot. The law also amended the Civil Code to support commercial cannabis activity that complies with state and local law.

You can seal your arrest record automatically if you weren’t charged or convicted. This is Senate Bill 393. It amended the Penal Code to permit most people who’ve been arrested but not charged or convicted (or whose convictions were overturned on appeal) to seal their arrest record. You may even be entitled to it as a matter of right in many cases; otherwise, you have to show that sealing your record would serve the interests of justice. Before this law, you couldn’t seal an arrest unless you proved your innocence, which is often difficult or impossible even when people did nothing wrong. But the law doesn’t apply if you could still be charged with something, so you must wait until the statute of limitations has run.

You don’t need to plead guilty to get drug treatment for simple possession. This is Assembly Bill 208. It amended the Penal Code to change a type of drug-treatment program we wrote about two weeks ago. The program used to be called deferred entry of judgment; now it’s called pretrial diversion. Before, you had to plead guilty and complete a program that ran 18 months to three years. If you completed the program, your case was dismissed, but if you didn’t, you’d be sentenced on your guilty plea. Now, you can plead not guilty, and the program runs only 12 to 18 months. But you have to waive your right to a jury trial, so if you don’t complete the program, you’ll go before a judge for trial.

The military diversion program includes misdemeanor DUI. Speaking of pretrial diversion, this is Senate Bill 725. It amended the Penal Code to extend a military diversion program to misdemeanor DUIs. This program enables a court to postpone a misdemeanor prosecution and place the defendant in a treatment program in which he may earn a dismissal if he is or was a member of the U.S. military and may be suffering from significant trauma or mental health problems as a result of his service. It wasn’t clear if the program included DUIs; two cases had decided it differently. This law resolves that it does. But it doesn’t guarantee diversion, and it doesn’t stop the DMV from taking your license.

It’s okay to enter a crosswalk during the countdown signal as long as you reach the other side before it ends. This is Assembly Bill 390. Before, you could only enter a crosswalk on a “walk” sign or symbol, and it was a crime (well, an infraction) to do it during the countdown. Who knew? So what if there’s no countdown, but the “don’t walk” sign or symbol is flashing? You’re not supposed to enter the crosswalk.


Medical Board Metes Out Discipline Based on a Police Report

If you’re a doctor or other licensed healthcare professional in California, remember. Your board or agency can discipline you for alleged conduct in a police report even if you’re never charged with or convicted of anything.

Just this week, the California Court of Appeal ruled that the medical board could discipline a doctor based on a police report even though his criminal case was dismissed.

Here’s what happened. The doctor was arrested for possessing cocaine. As part of his plea deal, he successfully completed a drug treatment program, and the case was dismissed. But the medical board learned of the arrest and filed its own case against him. At the hearing, the doctor argued the board’s case was based entirely on the arrest report, which was a problem because the Penal Code said you can’t do that.

The case pitted two statutes against each other. On one hand, the Penal Code says that when you complete a program like the one this doctor did, your arrest record can’t be used “in any way” to deny you a professional license or certificate. But the Business and Professions Code says that, “notwithstanding any other provision of law,” an agency that oversees the healing arts can do just that. It can rely on an arrest report to discipline you even if you successfully completed such a program.

It wasn’t the first time this question had come up, but remarkably, it was an issue of first impression in the law, meaning it was the first time a court of appeal had to decide it.

The court, though, had no trouble deciding that the second statute was a straightforward exception to the first one. The clincher was that the Penal Code was amended this year to make that interpretation explicit. So the doctor lost.

In these cases, you should begin to defend your professional license and livelihood at the same time you begin to defend against a criminal case or investigation. Which is immediately. We can help you do both.

Happy 2018, California

Let’s celebrate because the new year marks the dawn of the state’s licensing program for commercial, recreational cannabis. It follows the voters’ approval of Proposition 64, the Adult Use of Marijuana Act, which we wrote about last year.

But hold your horses, too, because it’s just the beginning. Earlier this month, the state launched its online application system, and two weeks ago, it issued its first batch of temporary licenses to retailers, distributors, microbusinesses, and testing laboratories. These licenses go effective January 1 and allow previously accredited businesses to do business while they complete the application process.

So far, only a few cities and counties are ready to go on January 1. Others, like Los Angeles, have been getting ready and will start taking applications within days or weeks. Some have opted out entirely. And most haven’t decided one way or another.

It’s a work in progress, then, and the best advice for now is to cover your backside. Run your business by the book, and invest in high-quality legal research, analysis, and representation. Invest in compliance, in other words, because it’s the only sustainable way in the end.

In the meantime, seven more states are poised to join the growing majority that has chosen to legalize, regulate, and tax medical or recreational pot.

So it may just be the beginning, but the new year looks bright.

The Most Patriotic Thing

Here’s a gift for the holidays: James P. Gray arguing relentlessly against drug prohibition as he has for twenty-five years now. He calls it the best thing, the most patriotic thing, that he can do for his country.

If you don’t know Jim Gray, you should. He’s a former state judge from Orange County, California who used to be a Republican, now is a Libertarian, and ran for the Vice-Presidency of the United States in 2012. He’s also a national treasure. He served in the Peace Corps after college, the Navy JAG Corps after law school, and the U.S. Attorney’s Office after that. As a federal prosecutor, he handled some of the major drug cases of his day, and as a trial judge, he presided over the drug cases that flooded his courtroom. He saw the system from every perspective, and his experiences changed him.

Way before it was popular to say so, especially in Orange County, Judge Gray held a press conference to criticize the war on drugs. It was 1992, and he may have been the first sitting judge ever to do so. He risked his career and reputation in doing so, but he was right then as he is now. Most of the problems we associate with drugs, he says, are drug-prohibition problems, not drug-use problems.

“Drug prohibition is the biggest failed policy in the history of the United States, second only to slavery. And if you listen, regardless of what your interests are—I will tell you, regardless of what that is—be it education, healthcare, crime, terrorism, or the environment—I will show you to your satisfaction how it is made worse by our policy of drug prohibition.”


New DOJ Policy on Foreign Business Bribery

On the eve of the fortieth anniversary of the Foreign Corrupt Practices Act, the Justice Department has unveiled a policy that strongly encourages businesses to self-report any violations to the government on their own.

Those that do can presume that the government won’t prosecute them criminally as long as they fix the problem timely and cooperate fully. That’s probably good for shareholders and boards of directors, among others, but less so for managers, executives, or foot soldiers who get thrown under the bus.

The new policy was announced last week at a conference on the FCPA. It’s been added to the official policy manual for federal prosecutors. It takes most parts of the government’s recent pilot program and makes them permanent.

What does it mean to self-report voluntarily, cooperate fully, and remediate timely? It means a company must report a violation promptly and before the government gets wind of it. Also, it must share everything it knows about anything and anyone involved. Then it must create a sound compliance program based on its size and resources. And it must return all the money or property that’s subject to restitution, forfeiture, or disgorgement.

The government may still prosecute if aggravating factors make the business more culpable. That may happen, for example, if executive management was involved, or the conduct was widespread, or the company made a lot of money from it, or it’s happened before.

But even then, if the business has voluntarily self-reported, fully cooperated, and timely remediated, the government will recommend a criminal fine that’s at least 50% lower than it otherwise might be (unless the business is a repeat offender). Also, if the business has created an effective compliance program, the government likely won’t require the appointment of an outside monitor.

Finally, if a business doesn’t self-report but later cooperates and remediates fully, the government will recommend a fine that’s at least 25% lower than it otherwise might be.

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