Wednesday, November 23, 2016

Houston Legal Links 11/23/2016 Happy Thanksgiving

Originally published by Mary Flood.

Top legal news includes: Texas judge blocks overtime rule challenged by Paxton, others; New evidence problems surface over crime lab testing; Obama commutes sentences for 9 Texas drug offenders; Texas argues it can fix foster care without judge’s oversight; Dallas Lawyers Mourn Loss of George Bramblett, Haynes and Boone Founding Partner (Texas Lawyer); Texas lawmaker files bill making attacks on police a hate crime; Texas Federal Judge Denies DOJ Request to Lift Ban on Transgender Bathroom Rule (Texas Lawyer); Texas governor’s returns show no owed federal taxes in 2015; Woman in wheelchair tased by Harris County deputies, video shows; In Galveston County, Even Personal Bonds Keep Defendants in Jail; Expecting No Help From Next President, Immigration Advocates Discuss How To Address Labor Exploitation; Men arrested, accused of robbing homes while posing as tree trimmers; Man dies in shootout with police when chase ends in Baytown; Officer kills robber at Raising Cane’s restaurant in Montgomery County; Contractor Accidentally Rips up Historic Freedmen’s Town Bricks; 5th Circ. Trims Antigua’s Stanford Ponzi Scheme Suits (Law360); Administrative ruling could bring back crowlers for beer lovers; Judge who told new citizens to move if they don’t like Trump as president will retire in 2017 (Chron subsc) & Dallas preacher defending self for showing Cowboys game in church.

For the water cooler: Lawyer who lost case because of bathroom break wins an appeal; Law firm can run ads targeting specific nursing home, Georgia Supreme Court rules; Tens of thousands join ‘Lawyers of the Left’ Facebook group, sign Bannon protest letter; Is Donald Trump about to violate the emoluments clause?; The Biglaw Attorneys On Trump’s DOJ Transition Team; World’s Largest Law Firm Conducts Layoffs; True Progress: Female Lawyers As Multi-Dimensional Characters In The Media; Criminal’s Modus Operandi Probably Just Means He Can’t Spell “Modus Operandi”; Reality TV Star Sues Law Firm; Obama commutations pass 1,000 mark; Does machine-learning-powered software make good research decisions? Lawyers can’t know for sure; Told to go back to his own country, BigLaw partner says lawyers need to stand up and be heard & Top 6 Courses For Animal Lovers.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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What Tops Your Techie Wish List This Holiday Season?

Originally published by Attorney at Work.

Each November, we ask legal tech experts to share their personal holiday technology wish list with our readers. Can’t decide what to gift the techie in your life? Here are things the practice management tech experts would most like to unwrap this year. Enjoy the season of giving!

Erik Mazzone: Apple Watch, from “Meh” to Must-Have

Honestly, it’s a bit of a surprise (to myself, if not to my long-suffering wife) that a new Apple Watch is at the top of my list. I’ve had an OG Apple Watch (or Series 1, I suppose, if you’re not into the whole brevity thing) for about a year, and for nearly all of that year it’s been a gadget in search of a use. I mean, it’s a great fitness tracker (though without a Fitbit’s social component), and it’s useful for getting text message notifications, quickly replying (that’s not dangerous when driving, right?) and a few other things.

But it just hasn’t had a something I love about it. The killer app, as it were.

Apple WatchUntil this week, that is, when I discovered something about it I just really love. It’s Apple’s new TARDIS app, which I now use daily to go back to a time where I don’t have to practice saying “President Trump.” JK, as the kids text. Sort of.

Actually, the feature I discovered is that my Apple Watch can be set up so it automatically unlocks my MacBook Pro from the lock screen. Instead of having to enter a password (the horror, having to type in a password — what is this, 2014?), my MacBook pops up a message that notifies me it is being unlocked by my Apple Watch and a corresponding message appears on my Watch. It is a small thing, but it is freaking awesome.

It also presages a near-term future where the Watch can act as a second factor in two-factor authentication, which is pretty cool.

So, just like that, my Apple Watch went overnight from “meh” to “Have I shown you what this thing can do?!?” I’m all in on it again, and naturally, now I want the upgraded model that is waterproof and has GPS in it. Now, will someone please forward this article to my wife?

Erik Mazzone (@ErikMazzone) is a practice management advisor and Director of the Center for Practice Management for the North Carolina Bar Association. He writes and speaks widely on legal technology and practice management, in North Carolina and throughout the country. 

Nora Regis: Get a Little Creative

This year I’m asking Santa for the 3Doodler, a 3-D printing pen. The tip of the pen excretes heated colored plastic that you can build on to create sculptures, models and ornaments.  There are three different types of 3Doodler pens: the “Start,” for kids ($49); the “Pro,” for artists, engineers, architects and designers ($249); and the “Create,” for hobbyists like me ($99).  There are lots of project tutorials and videos on the developer’s website to help you get started.

Nora Regis (@NoraRegisCBA) is Trainer & Coordinator, Law Practice Management and Technology, for the Chicago Bar Association. Nora is a former paralegal, specializing in litigation and bankruptcy. Prior to working in legal, she was a technology help desk agent at University of Wisconsin-Madison.

Heidi Alexander: A Better Set of Ears

A good set of headphones is essential in a mobile world. My headphones serve as an important utility, allowing me to take calls, catch up on podcasts, and jam to music on the go. I’m always searching for the perfect set of headphones. Currently, I use the Samsung Level-U Pro wireless headphones, which I’m quite satisfied with (especially given the reasonable price). But, from time to time when the Bluetooth connection fails or the battery level is too low, I default to my highly reliable Bose in-ear headphones

My holiday wish list this year includes, you guessed it, headphones. I’m torn between the Samsung Gear IconX and Bose Quiet Control 30, both wireless in-ear models. Samsung markets its Gear IconX as a minimalistic fitness solution, which I would use only for listening because it doesn’t have a microphone. On the other hand, the Bose Quiet Control 30 seems to be a souped-up version of the robust Samsung Level-U Pro and includes an app for the iPhone (which Samsung does not). The primary question for me is whether I replace my Samsung Level-U Pro with Bose or add the Samsung Gear IconX to my repertoire. Either way, I’m excited for the holidays!

Heidi S. Alexander (@heidialexander) is a law practice management advisor at the Massachusetts Law Office Management Assistance Program (MassLOMAP), where she advises lawyers on practice management matters and in implementing new technologies.

Catherine Sanders Reach: Some New Toys, Please 

Since there isn’t a time machine available for retail sale, there are a few things that fall secondarily in the “I’d be interested in at least playing with them” category:

  • Samsung Galaxy Gear VR by Oculus. Why? ‘Cause you can watch a 2-D video from the surface of the moon. And, it is a modest $60.
  • Moto Z with Mods. So, if I can’t get the virtual reality headgear I would take a new Moto Z with the Insta-Share Projector mod to turn the phone into a (duh) projector. And, because I’ve been extremely nice this year, maybe the JBL SoundBoost Speaker mod as well?
  • Google Home. Because Google already knows everything about me anyway, what could go wrong? Also, a new Chromecast to go with that please. 

And because giving is more fun than getting, just in time for the holidays check out all the different IFTTT applets (formerly known as recipes) to help you manage the hectic holiday season. This list of 32 possibilities from PC World covers everything from setting up push notification for shipping updates, to telling Alexa to add an item to your shopping list, to uploading all those special holiday photos you get tagged on in Facebook to a Dropbox folder … and much more.

Catherine Sanders Reach (@CatherineReach) is Director, Law Practice Management and Technology, for the Chicago Bar Association. She was previously Director of the American Bar Association’s Legal Technology Resource Center for over 10 years.

Lee Rosen: For the World Traveler … Hush!

bose-headphonesMy office is often a coffee shop in Asia, Europe or South America. I travel full time and make calls from noisy places. I need to be able to hear the other party and they need to be able to hear me. It’s helpful if they don’t realize that I’m sitting close to a barista making grinding and steaming noises. This holiday season, I want to unwrap the Bose QuietComfort 25 headphones so that I can hear the other caller well. They’re over the ear and noise-canceling so they block the sound of most anything.

But that’s only half of my holiday gift list.

I also need a Harmony Headset System microphone from UFlyMike so that my voice can be heard on the other end. The technology packed in this microphone blocks nearly everything other than my voice. It’s designed for pilots flying very noisy planes and it’s more than sufficient to block a noisy barista.

The Harmony microphone plugs right into the Bose headphones and replaces the mic on the Bose cord. They’re a matched set and built from the ground up for loud environments. My holiday season will be perfect — and quiet — if these gifts show up at my door.

Lee Rosen (@LeeRosen) practices family law in North Carolina. His blog, Divorce Discourse, is a three-time ABA Blawg 100 popular vote winner. He is a recipient of the ABA James Keane Award for Excellence in eLawyering.

Jane Oxley: It’s Time!

38-alu-rose-sport-pink-select-copyI’m finally crumbling and for personal and business reasons would really like to unwrap an Apple Watch this year. I like the notifications, which should release me from constantly looking at my phone to see Slack (IM) and email updates from my team. I also love the health and exercise tracking features on the Apple Watch. I tried, and failed, to wear a Fitbit, but I know that the Apple Watch will be on my wrist every day because it’s multipurpose! 

Jane Oxley (@JaneOxley8) is President of Smokeball case management software in Chicago, and former general manager at LEAP in Sydney, Australia.

Reid Trautz: Wish List Redux

It’s “Back to the Future” for me this year. My wish list is filled with upgrades of products I know, use and love. It’s time I replaced my beloved 10-year-old Bose QuietComfort 2 headphones, and despite the dozens of great options out there, I like the new QuietComfort 35 wireless headphones that are on every “best of” list this year. I’d also love a replacement for my original Fitbit. I like the sleek new Alta model or the new Charge2. Both have great fitness and health features that will help me achieve my fitness goals. Finally, it’s time to retire my trusty iPad 2 that has become frustratingly slow and just can’t run the new iOS. There are some great deals on the iPad Air 2 this season that have attracted my attention. 

Reid Trautz is a lawyer, author, speaker and blogger on the issues of business process improvement, technology, legal ethics and effective practice management. He is a past Chair of ABA TECHSHOW, a Fellow of the College of Law Practice Management and co-author of “The Busy Lawyer’s Guide to Success: Essential Tips to Power Your Practice.” Follow him on Twitter @rtrautz.

Tom Lambotte: Something for Me, and Something for the Mac Office

We just ordered 10 new MacBook Pros with the Touchpad for our team here. I’ll be moving away from having two computers — right now an 11-inch MacBook Air as my travel machine and my 27-inch iMac in the office — and moving to a single computer, so I’ll be needing a monitor. On my wish list is the LG Electronics 4K UHD 27UD88-W 27-inch LED-Lit Monitor with USB Type-C. This 4K monitor will give me the Retina quality that I’ll soon be used to on the new MacBook Pro. It also has the Type-C connector, which will let me use the monitor as a dock, letting me connect a few USB devices in the back of it and charge my laptop at the same time, keeping my desk clear from connectors and cables.

On my personal list is the new Nintendo NES Classic. It is a diminutive plug-and-play re-creation of the original Nintendo Entertainment System, a lot of nostalgia on the gaming console I grew up on. It fits in the palm of your hand, hooked up via HDMI, and comes preloaded with 30 games and includes a single controller. From early signs, this will be one of the hottest items this season, with all of them selling out within hours when they were first released. They have been selling for triple the $59.99 price tag on eBay! I don’t need one that badly, but I’ll be keeping an eye out to see when they come in stock.

Tom Lambotte (@LegalMacIT) is CEO of GlobalMacIT, a company specializing in providing IT support to Mac-based law firms. Tom is the author of “Hassle Free Mac IT Support for Law Firms” and “Legal Boost: Big Profits Through an IT Transformation.” 

Sharon Nelson: Hands-free Tablets Anywhere

My tech wish list is long, but answering this question prompted me to just go buy something I’ve wanted for a while. It’s a Prepara iPrep foldable/adjustable e-reader, phone and tablet stand, for iPads and Surface Pros among many other devices. At $20.47 from Amazon, you can’t beat the price and it has a five-year warranty.

prepara-iprep-black-tablet-stand-with-stylus-d-20140129150744797-324761

It fits all popular tablets, e-readers and cellphones, including Apple iPad, iPad Air, iPad mini, iPhone, Microsoft Surface, Android, Amazon Fire, Kindle, Nook, Samsung and Nexus devices. The iPrep is an easy way to support securely your tablet throughout the home or when traveling.  There is an integrated stylus pen stored in the base for convenient access. The iPrep is portable, compact and folds to fit any bag, backpack or purse

There are four adjustable angles to position the tablet for ideal viewing with a non-slip rubber grip on the base. This is important to me since I am prone to knocking my iPad over because its own stand isn’t all that stable. 

Curiously, this device is advertised primarily for cooks (and I prepare from-scratch meals every night!), but as much as I may use the device to display recipes and then store them on my iPad or Surface Pro, I also see this device as a very stable way to set my iPad on the kitchen table and Facetime with my grandchildren.

At home or on the road, it offers a great way to videoconference with clients on the iPad, leaving hands free to write or type on my Surface Pro as needed. I can also see watching movies or TV on my iPad while working at hotel desks on my Surface Pro. It can also simply serve as another monitor — and everyone misses multiple monitors when traveling.

Thanks for asking me, Attorney at Work, and giving me the excuse to press that Amazon one-click button! You can buy the iPrep here.  

Sharon D. Nelson (@SharonNelsonEsq) is President of Sensei Enterprises, Inc., a digital forensics, legal technology and information security firm. She has written or co-authored a number of books, including “The Solo and Small Firm Legal Technology Guides.” She blogs at Ride the Lightning and co-produces the podcast The Digital Edge: Lawyers and Technology.

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Tuesday, November 22, 2016

Texas Law Regulates Barriers for Home Swimming Pools

Originally published by robertslawfirm.

Texas law requires homeowners who have swimming pools to construct barriers around their pools to help prevent accidental drowning deaths. Under the law, swimming pool barriers: Must be at least four feet high. Cannot have any gaps, openings, indentations or protrusions that would allow a spherical object of four inches to pass under or between the barriers. Cannot be made of chain link fence. Must have self-close or self-lock gates that are lockable by padlock, combination lock or built-in key or card-operated lock. Latches must be installed in the upper one-quarter of the pool side of the gate to prevent children from opening them easily. Aboveground pools must also meet these same standards with the added proviso that ladders or steps must be capable of being secured, locked or removed to prevent access to the pool. If the wall of the house serves as part of the pool’s barrier, all doors that permit access to the pool area from the home are required to have an alarm that sounds when the door is opened. Any alarm bypass must be set high enough on the wall that it cannot be reached by children. In addition to state regulations, most cities have pool fence codes that homeowners must meet or face fines. Some homeowners associations also impose regulations for pool fencing, so if your housing development has an HOA, be sure to check their rules for pools. Homeowners with pools should also institute safety rules for pool use, including: Always lock the […]

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TLAP director to help lead national lawyer wellness task force

Originally published by Jillian Beck.

Texas Lawyers’ Assistance Program Director Bree Buchanan has been named co-chair of a national task force focused on improving lawyer wellness.

The American Bar Association Commission on Lawyer Assistance Programs Task Force on Lawyer Wellness is a joint effort between the commission, the National Organization of Bar Counsel, the Association of Professional Responsibility Lawyers, and others, to address the findings of the ABA and Hazelden Betty Ford Foundation study, which showed attorneys experience substance abuse and mental health issues more than any other profession and the general population.

“I am both humbled and excited about the opportunity to work with such esteemed colleagues across the country,” Buchanan told the Texas Bar Blog. “Our hope is to bring forth recommendations from the study that set off a cultural shift in how the legal profession addresses the health and well-being of its members.”

Learn more about the Texas Lawyers’ Assistance Program at texasbar.com/tlap and the ABA Commission on Lawyer Assistance Programs at http://ift.tt/2gj8mR5.

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Denying Justice by Limiting Definition of “Conviction”

Originally published by John Floyd.

The laws that apply to guilt do not always apply to punishment—at least that is the position of the Texas Court of Criminal Appeals (TexCrimApp). This can create a slippery slope in cases where new evidence tends to undermine both the guilt/innocence and sentencing phases of a criminal proceeding.

 

Favorable DNA Evidence

 

In 2001, the Texas Legislature created Chapter 64 of the Texas Code of Criminal Procedure that permits an inmate to file a post-conviction application for DNA testing if he or she can “establish by a preponderance of the evidence that he/she would not have been convicted if exculpatory DNA results been available to the jury at the time of his trial.”

 

Two years later the Legislature effectively noticed the TexCrimApp that its intent was to have the lesser “preponderance of evidence” standard utilized in these cases than the stricter “reasonable probability” standard the court had tried to apply to the statute.

 

Only Applies to Conviction Not Sentencing Error

 

In 2011, the TexCrimApp in Ex parte Gutierrez held that the DNA testing statute applies only to those inmates who “would not have been convicted” and “does not authorize testing when exculpatory results might affect only the punishment or sentence.”

 

Put simply, exculpatory DNA can only reverse of wrongful conviction, not the sentence resulting from that conviction.

 

Favorable Scientific Evidence Statute

 

In 2013, the Texas Legislature enacted a new forensic science statute and codified it in Article 11.073 of the Code of Criminal Procedure. The statute permits the filing of an application for writ of habeas corpus challenging a conviction based on new scientific evidence.

 

Again, the Legislature made it clear that these habeas applications would be guided by the “preponderance of evidence” standard.

 

It was inevitable that the TexCrimApp would be called upon to decide whether Article 11.073 applies solely to conviction and not punishment. The court decided this issue on November 2, 2016 in the case of Ex parte Garcia Glen White.

 

Amicus File Briefs, Argue Required in Death Penalty Cases

 

Through amicus briefs, the Texas Criminal Defense Lawyers Association, the Harris County Criminal Lawyers Association, Harris Country Public Defender’s Office, and the Office of Capital and Forensic Writs argued that the court should address this specific question: “whether new scientific evidence presented pursuant to Article 11.073 can affect only punishment phase evidence.”

 

Amici curiae conceded that the plain language of Article 11.073 “does not appear to apply to newly discovered evidence that would affect the punishment phase of a capital trial.” Their briefs, however, suggested that the court was “constitutionally required” to allow challenges to a death penalty in a capital case.

 

TCDLA amicus argued that the word “convicted” as used in Article 11.073 should be interpreted by the definition the TexCrimApp had given to the word “conviction” in the 1998 decision Ex parte Evans. The OCFW amicus argued that the word “convicted” should mean the same thing as the word “conviction” in Articles 11.07 and 11.071 which encompasses both guilt and punishment.

 

Texas Court of Criminal Appeals Refuses, Limits to Conviction

 

The TexCrimApp replied to these arguments, saying: “… It is true that legal dictionaries have sometimes referred to ‘convicted’ by saying ‘See Conviction,’ and definitions of ‘conviction,’  though generally referring to guilt, sometimes include the assessment of punishment. It is also true, though, that the word ‘convicted’ is more likely to refer solely to guilt than the word ‘conviction’ is.”

 

The TexCrimApp added:

 

“But even if the term ‘convicted’ includes the assessment of punishment, the amici’s claims fail because of the context in which the word ‘convicted’ is used in the statute. Evans was concerned with statutory language that referred to a challenge to an existing conviction, Likewise, Articles 11.07 and 11.071 are concerned with seeking relief from an existing conviction. A challenge to a sentence would necessarily be a challenge to an existing conviction. But the language is the statute before us—‘would not have been convicted’—plainly refers to any possible conviction on the charge. Even if an applicant proves that he would have received a different sentence for the charged offense, he has failed to establish that he ‘would not have been convicted.’ From the language and context of the statute alone, we conclude that the statute is unambiguous in requiring a claim under Article 11.073 be one that undermines the verdict or finding of guilt.”

 

11.073 Needs to be Amended

 

As we pointed out in our post this past February, there has been tension between the TexCrimApp. and the legislature over the intent of Article 11.073. As it did during it last session (2015), the legislature should revisit Article 11.073 and amend it so that it applies to both conviction and sentencing; that is, a defendant should be allowed to have flawed forensic evidence tested if he or she can show, by a preponderance of the evidence, that that evidence had an impact on the sentence imposed, particularly if the sentence is the death penalty.

 

It appears to us that the TexCrimApp has once again created a need for the legislature to act with regards to Article 11.073. We do not believe that the State should be allowed to execute an inmate or require him or her to spend the rest of their natural life in prison because flawed forensic science evidence resulted in those sentences.

 

 

 

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New Texas lawyers sworn in at November ceremony

Originally published by Jillian Beck.


Hundreds of Texas’ newest lawyers were officially sworn in Monday at the Frank Erwin Center in Austin at the November New Lawyers Induction Ceremony.

Friends and family of the new attorneys and representatives from the State Bar of Texas and the state’s law schools filled the room for the event, as the Texas Supreme Court and Court of Criminal Appeals presided.

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Federal Prosecutors Breach Plea Agreement, Appellate Court Vacates Sentence

Originally published by John Floyd.

A federal plea agreement is a binding contract between the U.S. Government and a criminal defendant. It is sometimes proffered but more often than not is the result of negotiations between Assistant U.S. Attorneys and criminal defense attorneys.

 

97 percent of all federal drug defendants in this country plead guilty, primarily through a negotiated plea agreement.

 

And why is this so?

 

Federal Trial Tax

 

Because, according to Human Rights Watch, federal drug defendants who elect to exercise their Sixth Amendment right to trial receive sentences three times longer than those who plead guilty.

 

Jacobi Tavares Hunter is a federal drug defendant convicted in the Southern District of Florida. He was indicted on four charges of possession with intent to distribute marijuana, cocaine, crack cocaine, and heroin.

 

Like many drug offenses, Hunter’s arrest stemmed from a police traffic stop, allegedly for having illegally tinted windows. The officers who stopped the vehicle stated they detected the odor of marijuana when they approached it. They ordered Hunter out of the vehicle and frisked him. An ensuing search found evidence of drug possession, and based on the amount, there was the statutory implied intent to distribute the drugs.

 

Hunter’s attorney filed a motion to suppress the evidence. The trial court conducted a hearing on the motion on February 4, 2015. Hunter testified at the hearing, conveying his version of events leading up to the traffic stop. The trial court was not impressed, finding that his testimony was not credible. The court denied the suppression motion.

 

Plea Agreement Offered

 

During the suppression hearing, the Government offered a plea deal. The deal called for Hunter to plead guilty to all four charges against him. In exchange, the Government stipulated it would agree to a sentence reduction based on “acceptance of responsibility—a routine stipulation consistent with U.S. Sentencing Guideline § 3E1.1(a).

 

The Government also stipulated that if the ensuing Presentence Investigation Report (PSI) determined that Hunter’s offense level to be 16 or above, it would file a motion “requesting an additional one level reduction” for acceptance of responsibility—a stipulation authorized when a defendant assists either in the Government’s investigation or defendant’s own prosecution by “timely notifying authorities of his intention to enter a plea of guilty,” relieving the Government of the responsibility of bringing the case to trial.

 

Defendant Accepted Plea Deal

 

There was nothing unusual about the plea deal. Hunter, therefore, accepted the deal.

 

On March 4, 2015, the trial court conducted a “change-of-plea” hearing. The court ordered that a PSI be prepared.

 

And this is where the judicial waters get murky.

 

The PSI was submitted to the court with the recommendation of a two-level increase for “obstruction of justice” (based on Hunter’s less than credible testimony at the suppression hearing) and did not contain a “reduction for acceptance of responsibility.”

 

Defendant Objected to PSI

 

Hunter objected to the PSI on a number of grounds, but mostly for the obstruction increase and the failure to include an acceptance of responsibility reduction.

 

It was time for the Government to step up to the plate and honor its “plea agreement” responsibility.

 

What did the Government do?

 

Government Defaulted on Plea Agreement

 

It not only failed to request its promised acceptance of responsibility reduction, prosecutors filed a motion seeking an “upward departure or variance” from the sentence actually recommended by the PSI.

 

The Government reneged on its deal.

 

Hunter countered with a motion seeking a “downward variance” based on the “physical and mental harm” he suffered during the arrest.

 

The trial court conducted a sentencing hearing at which Hunter argued the Government had breached the plea agreement.

 

The Government again failed to honor its agreement. Its reasoning? That prosecutors were not bound by the agreement to seek a reduction for acceptance of responsibility if the court concluded that Hunter had “obstructed justice” by “committing perjury” at the suppression hearing.

 

To say that Hunter’s counsel was upset would be that proverbial understatement.

 

Defense Counsel Seeks Specific Performance

 

Counsel sought “specific performance” of the guilty plea contract and asked that the case be assigned to another judge—both reasonable requests given the circumstances.

 

While the trial court stopped short of finding an actual breach of the agreement, the judge did express a concern that “the Government seems to give with one hand and take back with the other, because a defendant … would believe if he signed this agreement that he was going to get the acceptance of responsibility.”

 

And the waters got even murkier.

 

The trial court decided to give Hunter the acceptance of responsibility reduction to “solve this” problem because, as the court stated, “the decision to plead guilty is an important decision.”

 

Court Agrees, Prosecutors Continue to Argue for Upward Departure

 

Given the trial court’s reasoning, the Government conceded that Hunter was “probably” entitled to a three-level reduction but prosecutors continued to argue for their “upward departure or variance.”

 

The trial court “recalculated” the PSI’s recommended sentence, finding a new “guidelines range” of 18 to 24 months.

 

Hunter by any measure of reason should have received a sentence within that range.

 

Instead, the trial court imposed a 60-month term of imprisonment based on the Government’s request for an upward departure or variance because of Hunter’s alleged obstruction of justice.

 

This was a rotten situation all the way round. Not only did the Government breach its stipulation to the acceptance of responsibility reduction but moved for an offense level increase based on the court’s earlier observation at the suppression hearing that Hunter’s testimony was less than credible.

 

Fortunately, the Eleventh Circuit Court of Appeals was not persuaded by the Government’s conduct in this case. The appeals court noted that prosecutors offered the deal “after” they heard the trial court’s reservations about Hunter’s less than credible suppression hearing testimony.  In other words, prosecutors knew, or certainly should have known, that Hunter’s less than credible suppression hearing testimony constituted “obstruction of justice” before it offered the plea deal with the specific stipulation of recommending a reduction for acceptance of responsibility.

 

Court of Appeals Finds Government Breached Plea Agreement, Vacates Sentence

 

On August 26, 2016, the appeals court found that the Government’s “conduct constitute[ed] a breach of the agreement entered into by the parties.” The court vacated Hunter’s 60-month sentence and remanded for re-sentencing.

 

Valuable time and judicial resources were wasted because of the Government’s highly questionable ethical conduct in this case. There should be more accountability for this sort of prosecutorial misconduct than a mere re-sentencing order.

 

 

 

 

 

 

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