Joplin MO Criminal Defense Lawyer Blog

Federal Attorneys Renege on Plea Bargain

In a disturbing opinion, eight Judges of the 8th U.S. Circuit  Court of Appeals ruled this past Monday that a plea bargain the Kansas City US Attorney's Office had made with a defendant could be reneged on.  The defendant had originally been charged in 2003 with conspiring to distribute more than 50 grams of crack cocaine in 2002.  The defendant's attorney negotiated a plea agreement with the US attorney for the defendant to plead guilty to one count of conspiracy and the prosecutor would not file any additional charges against the defendant arising from the investigation.  A day before the defendant was to plead guilty per the agreement, another US attorney decided that the plea agreement was too lenient and told the other attorney in that office that made the deal to make it clear at the plea hearing that the government would only limit additional charges from conduct in the time frame mentioned in the indictment (not from the whole investigative time period as  agreed upon).   When the US attorney changed the agreement at the plea hearing, the trial judge ordered the government to complete the plea agreement.  The US attorney appealed.   Originally a three-judge panel of the 8th US Circuit Court of Appeals ruled that the government had to go through with the agreement.  Then when heard by the full court, eight judges allowed the government to renege.  Four judges dissented, one being Judge Myron H. Bright, who stated:

"The government reneged on its word."

"That omission . . .  threatens to make the word of that office not worth the paper on which it is written.  Fortunately for the country, I do not believe that federal prosecutors in other districts are in the mold of the Western District of Missouri."

Harsh words but applicable.  When one attorney cannot trust the word of another attorney or his/her office in situations like this,  it makes for a very bad situation and leaves defendants in limbo wondering about a plea bargain agreement until the judge accepts the agreement and the agreement goes forward.  No one wants to have the plea bargain set aside at the very last minute.  By then there could be incriminating statements made by the defendant.  Not a good situation to be in.    I applaud Judge Bright for his words.

Source:  Kansas City Star, Prosecutors changed deal with Jamal T. Norris after they decided it was too lenient, by Mark Morris

New DNA Rule Proposed for Illegal Immigrants

The Divorce Law Journal's article "U.S. Set to Begin A Vast Expansion of DNA Sampling" discusses the proposed rules that would require DNA samples from illegal immigrants who are detained.  Normally the illegal immigrants would be fingerprinted but these new rules would go further and require the DNA samples.  Initially this doesn't sound too bad but consider what the DNA results could reveal - physical diseases, mental disorders, etc.  We don't need that information in order to identify the illegal immigrants.  It seems that immigration attorneys were taken by surprise when the measure was passed last year.  Now they are going to have to deal with the consequences and so are their clients.  Last year more than 1.2 million immigrants were detained last year.  That is a lot of DNA samples.  Questions arise as to how the samples and results are going to be kept in order to protect the privacy of the immigrants, who is going to have access to the results, what is the cost that the American people are going to have to pay to have this done, and the list goes on.  Regardless of how you feel about immigrants coming into the country illegally, requiring DNA samples automatically just isn't right.

Source:  Divorce Law Journal, 2/5/07

Preliminary Hearing Testimony Admitted at Trial

On January 23, 2007 the Missouri Court of Appeals, Western District, handed down its decision in  State of Missouri v. Terrese D. Aaron.  The defendant alleged that the trial court violated his rights under the Sixth and Fourteenth amendments to the United States Constitution and article I, sections 10 and 18(a) of the Missouri Constitution because it allowed the taped preliminary hearing testimony of a deceased witness to be played to the jury.

The abbreviated facts of this case are that the defendant, along with his co-defendants, allegedly shot and killed a man in Mexico (my hometown, which is part of the reason  why I paid attention to this case).  At the defendant's preliminary hearing one of the co-defendants offered as a witness the deceased man's girlfriend who was at the scene.  This testimony was offered to show that the co-defendant did not have a gun.  The witness subsequently died before the defendant's trial.  At trial the court allowed the prosecuting attorney to play the deceased witness' preliminary hearing testimony. Defendant objected because he did not believe he had adequate cross-examination of this witness at the preliminary hearing and this violated his rights pursuant to the United States Supreme Court ruling in Crawford v. Washington, which states that "prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine."  541 U.S. 36, 57 (2004).

The appellate court went through the various issues raised by the defendant and found that:

• pre-Crawford decisions in Missouri have held that testimony of an unavailable declarant given at a properly held preliminary hearing affords substantial compliance with the confrontation requirement;
• Rule 22.09 and section 544.250 give criminal defendants in felony cases filed by way of a complaint the right to a preliminary hearing and are entitled to cross-examine witnesses and present their own evidence;
• although the right to cross-examine and the opportunity of the jury to observe the witness are part of the right to confrontation, the opportunity of the jury to observe the witness gives way to necessity when a witness is unavailable to testify if the defendant had the opportunity to cross-examine the witness in a "face to face" manner at an earlier hearing; this meets the requirements of the Missouri Constitution and the federal constitution;
• the lack of discovery prior to the preliminary hearing nor the brevity of the cross-examination of the witness violates  the constitutional protections;
• the purpose for which the testimony at the preliminary hearing is offered does not matter so long as the defendant had the opportunity to cross-examine the witness  and the testimony being offered at trial is on  substantially the same issue and with the same parties;
• the appellate court is bound to follow the current Missouri law absent a determination by the Missouri Supreme Court that those cases are inconsistent with the reasoning held in Crawford.

The appellate court found that the defendant's rights were not violated by the deceased witness' preliminary hearing testimony being played to the jury at his trial. 

One other thing I found interesting about this case was that the  appellate court stated "The facts of the present case thus present the odd possibility that a criminal defendant's confrontation rights may be more closely protected in Missouri by the law of evidence than by the specific command of the Sixth Amendment."   This shows that criminal defense attorneys should pay attention not only to the United States and Missouri Constitutions but also to the Missouri rules of evidence.  More protection may lie there.

Source:  State of Missouri v. Terrese D. Aaron, WD65362, 01/23/2007.

Sentencing Guidelines - Federal Court

In federal courts the judges are suppose to have discretion to vary upwards or downwards from the U.S. Sentencing Guidelines when sentencing a  defendant.  It has been approximately two years since the U.S. Supreme Court made this determination.  Yet,   judges are not always allowed this discretion.  Recently in the 8th U.S. Circuit Court of Appeals a trial court's (district court's) sentences for a brother and sister charged with conspiracy to possess pseudoephedrine knowing that it would be used to manufacture methamphetamine were vacated and remanded for new sentences more in compliance with the Sentencing Guidelines.

In sentencing the brother and sister the trial court departed downward on each sentence due to factors that the trial court listed.  In addition the trial court made statements regarding the Sentencing Commission policy on pseudoephedrine, which sets forth a formula based on the presumed amount of methamphetamine that could be produced from the amount of pseudoephedrine possessed.  The trial court indicated that the formula was not as "simple" as perhaps the Sentencing Commission believed.  The 8th Circuit reviewed the factors considered as well as the trial court's view on the formula and found them unreasonable and an abuse of discretion.

Bottom line - if the trial court departs downward from the U.S. Sentencing Guidelines and the district attorney isn't happy and appeals, your sentence may be vacated and your case remanded for resentencing in compliance with the Sentencing Guidelines.

Source:  U.S. v. Gentile, 2007 U.S. App. LEXIS 909 (8th Cir. Jan. 17, 2007); Missouri Lawyers Weekly, January 22, 2007