Trial Skills

Alleged gang member is convicted of witness retaliation and sentenced to three years in prison after attacking a former member of his gang on the street in the Bronx. At trial, man asks court to explore potential gang bias during jury selection. Trial court: no, it would be “improper,” and will only ask general questions, never mentioning gangs. Second Circuit: no. New trial. The defense was not allowed to sufficiently screen for anti-gang bias among the jurors. "[D]istrict judges are afforded broad discretion in conducting voir dire.

In the consolidated cases Brown v. United States, No. 22-6389 (May 23, 2024), and Jackson v. United States, No. 22-6640 (May 23, 2024), opinion here, the Supreme Court held that a state drug conviction counts as an ACCA predicate if it involved a drug on the federal schedules at the time of the state conviction.  The 6 to 3 opinion, written by Justice Alito, joined by the Chief Justice Roberts and Justices Thomas, Sotomayor, Kavanaugh, and Barrett, begins like this:

A first of its kind, the U.S. Attorney’s Office for the Western District of Wisconsin has charged a man for allegedly producing and possessing images of child pornography. The images at issue were generated entirely through artificial intelligence using the generative artificial intelligence model Stable Diffusion and created using text prompts describing the images to be generated. Images of children are not alleged to have been used in generating the images.

Prosecutor in plea negotiations: We agree to recommend a sentence at the bottom of the guideline range. Prosecutor to district court: We recommend a sentence at the bottom of the guideline range for this top-of-the-food-chain drug dealer who is worse than a murderer. District court: Top of the guideline range it is.

AH Datalytics has launched a “Real-Time” crime index, (RTCI), online. (access index). AH Datalytics launched the real-time crime index in an effort to “aid in the need for a faster understanding and visualization of national, state, and local crime trends.” AH Datalytics acknowledges certain crime data is under-reported to police and agencies can fail to provide complete or accurate information.

The United States Sentencing Commission releases new Quick Facts periodically, which give readers "basic facts about a single area of federal crime in an easy-top-read, two page format."

Quick Facts published in September include:

Today, the Supreme Court agreed to hear another Texas death row inmate’s case challenging the state’s DNA testing statute as unconstitutional.  Gutierrez v. Saenz, No. 23-7809 (Oct. 4, 2024) (cert. granted).

Following up on the Supreme Court's Padilla v. Kentucky holding that non-citizen criminal defendants must be advised of any risk of deportation associated with a guilty plea, En banc Second Circuit: If a guilty plea could lead to denaturalization and deportation, lawyers must advise their clients of that fact or they're giving unconstitutionally ineffective counsel.

Wednesday, the federal government shed light on a new wave of scams targeting attorneys across the country.

Attorneys across the country are being targeted with fake electronic filing notifications, in which emails purporting to come from the federal Judiciary’s Case Management/Electronic Case Files (CM/ECF) system lead recipients to a malicious website with computer viruses.

Nevada man's trial in March 2021 began with one of the jurors participating via Zoom for the first two days because of a possible Covid-19 infection. Man is convicted and appeals,  asserting that the remote participation was akin to depriving him of his constitutional rights to a fair and impartial jury trial. Ninth Circuit: If you don't want jurors in your criminal trial to participate by Zoom, don't consent to their doing so.