Defending due process in the DC Court of Appeals

On September 21, 2017, a panel of the DC Court of Appeals ruled unanimously in favor of Nigel Barrella’s client, who had been convicted of driving with a revoked license, even though the DC DMV never sent him notice of the revocation. Nigel had argued his client’s case before the court in October 2016.

In this case, the DC government had argued that because operating after revocation is a so-called “strict liability” crime, it did not matter whether the DMV had sent him notice that they were revoking his license, or whether he received that notice. The government maintained that all it had to prove for a conviction was that his license was revoked and that he was driving in DC.

Nigel argued that the regulations required the DMV to send notice, and that due process (i.e. the Fifth Amendment to the Constitution) also requires it. The Court of Appeals agreed that the DMV’s regulations required them to send notice, and the court also held that failure to receive notice could be treated as a defense to operating after suspension or revocation.

In future cases when motorists are charged with this crime, the DMV should be prepared to prove that they provided notice of their action revoking or suspending the license. DMV regulations already required record-keeping of notices sent to motorists.

Anecdotes from many motorists suggest that the DC DMV frequently has not been sending notices in the manner required by regulation. Going forward, the Court’s ruling creates an important incentive for the DMV to carry out its duties in a manner consistent with due process.

Bottom line: if the DC DMV does not send notice to motorists, it should not expect to be able to prosecute the motorists who are (unknowingly) driving without a valid license. That’s not just common sense anymore — it’s the law.

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To err is human — not a crime

On March 17, 2016, a panel of the DC Court of Appeals delivered a unanimous decision in favor of Nigel Barrella’s client. Nigel had argued this case before the court on September 22, 2015.

In this case, Nigel’s client had been charged with missing his court date, though he testified that he had made a simple mistake — getting the court date confused. And although the trial judge appeared to believe his excuse, she also believed the law required a guilty finding. The government had argued that he was guilty simply because he did not double-check to make sure what his court date was.

Rejecting the government’s argument, the Court of Appeals reversed. The law at issue makes “willful” violations a crime, and the court made clear that “willful” means “knowing, intentional, and deliberate” — not inadvertent or accidental. After clarifying the law, the court sent the case back to the trial judge for reconsideration.

Subsequently, on August 11, 2017, the trial judge entered a verdict of not guilty.

Going forward, this precedential ruling of the Court of Appeals helps reinforce a bedrock principle of criminal law: the government should be required to prove criminal intent (with rare, limited exceptions). Innocent mistakes should not be the stuff of criminal prosecutions.

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4th Circuit flags possible misreading of Eighth Amendment precedents

An interesting opinion from the U.S. Court of Appeals for the Fourth Circuit this week all but invites a future challenge to some of that court’s Eighth Amendment case law.

The case involved a teenager sentenced to a fifteen-year mandatory minimum that many people would view as disproportionate to the crime committed. (The trial judge, and probably all the judges on the appeals panel, viewed it this way.) One way of challenging a disproportionate sentence is through the Eighth Amendment, as a violation of the prohibition on “cruel and unusual” punishment.

The court ultimately did not reach this challenge by the defendant — a different challenge was more clear-cut. The defendant was not given his Miranda rights before being interrogated in a situation which, the court found, was “custodial” — in other words, a situation in which a reasonable person would not feel free to leave. This constitutional violation demanded a new trial without the fruits of this interrogation.

Judge Wilkinson, writing for the court, found it unnecessary to reach the merits of the Eighth Amendment argument, but did make this comment:

[T]his was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant’s conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.

Even more interestingly, Judge King wrote separately to call into question some of the Circuit’s Eighth Amendment cases. And he did so in no uncertain terms, calling the rule in such cases “a misperception of the law in this Court.” (Another persuasive opinion by Judge Gregory had made a similar argument when the full court denied en banc review.) The question is whether Eighth Amendment challenges are available for sentences less than life imprisonment.

It started with a case called Polk, in which the court declined to exercise Eighth Amendment review, noting that it was not required to do so in cases involving sentences less than life. But in later cases, panels of the Fourth Circuit began citing Polk for the proposition that such review was unavailable for sentences less than life.  (Examples: Ming Hong, Lockhart.) This, he argues, is a misunderstanding of what Polk said: not being required to do something is not the same as not being allowed to do it. Other circuits do not follow this rule, and Supreme Court precedent calls it into question.

It would probably require full-court review to change course at this point — but Judge King’s opinion in this case all but invites such a review when an appropriate case arises.

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DCCA: D.C. gun law unconstitutional

Can it be a crime to simply ride in a car in which you know there is an illegal gun? In a 2-1 opinion by Judge Glickman today, the D.C. Court of Appeals says no.

The law in question is a 2009 D.C. law, D.C. code § 22-2511, which criminalizes the knowing presence in a motor vehicle containing a firearm. (“PMVCF” for short.) The law was supposed to make it easier to convict the occupants of a car where a gun is found, when the government can’t prove who actually owned it or had control over it.

The court found two constitutional problems with the law: first, it shifted the burden away from the government and onto the defendant regarding whether the defendant’s presence in the car was voluntary or involuntary. But the court wrote this constitutional flaw would not require striking down the statute entirely, but rather modifying the law to put the burden on the government.

More troubling to the court was that this was a “crime of omission.” In other words, if you learn that there’s an illegal gun in the car, failing to get out of the car as soon as you can is a crime — and laws that criminalize the failure to do something are very rare. The court compared it to a 1957 Supreme Court case in which Los Angeles required convicted felons to register with the city when they moved there; the Supreme Court found that law unconstitutional, because it was an unexpected and unusual crime of omission.

Although ignorance of the law is no excuse, you simply wouldn’t expect to be punished just for being around someone who’s breaking the law. The court pointed to one way in which the law is illogical — you can hang around with someone all day and go anywhere with them while they’re carrying an illegal gun, but don’t you dare get into a car with them. This is not what an ordinary person would expect.

Judge Thompson concurred in the judgment only, finding that the jury was improperly instructed and that the defendant should get a new trial. She dissented, however, from the court’s decision to hold the statute unconstitutional. She argued the 1957 Lambert case was an anomaly, and has almost never been used to strike down other statutes.

The defendant’s conviction was reversed, and the statute prohibiting presence in a motor vehicle containing a firearm was struck down. For now, PMVCF is no longer a crime in the District. But given the hard line DC takes on gun charges, it’s probably still not a good idea.

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DCCA: DNA analysts should present results in court

Earlier this summer, I wrote about the North Carolina Supreme Court‘s handling of the doctrinal mess made by the U.S. Supreme Court‘s fractured opinions in Williams v. Illinois.  Well, on September 12, the D.C. Court of Appeals announced its latest solution to this problem, in Jenkins v. United States — and it turns out the approaches of NC and DC are basically polar opposites.

"DNA lab" by flickr user snre
Supreme Court results: inconclusive.

In my earlier post, I reviewed the Supreme Court’s 4-1-4 breakdown in Williams and concluded that the North Carolina court had followed the spirit of four Justices, and as a result, probably stretched the law to allow testimony about drug analysis that five Justices would have forbidden.

On the other hand, the new D.C. opinion starts with a case that is, in many important ways, just like Williams: the evidence included DNA profiles that were produced before police had identified the defendant as a suspect. (The twist is that the police did have a suspect at the time — not the defendant, but another guy whom the DNA exonerated.) It’s almost certain from Williams that five Justices would say that this important out-of-court evidence is fair game, if they were faced with the question. But the defendant argued this evidence should not be admitted, Williams notwithstanding, and the D.C. court had to decide what effect the Supreme Court’s fractured opinion in Williams had on existing law.

The answer in D.C. turns out to be, none at all (unless you have a case almost identical to Williams.) When dealing with non-majority opinions, the practice is to try to identify a rule that gives the result on the narrowest possible grounds identified by the concurrence. In other words, how do the plurality and concurring opinions overlap?

Reading the plurality and concurrence in Williams, the D.C. court (through Judge Oberly) decided they don’t overlap at all. Williams, then, did not change existing law. As a result, the court announced it would mostly stick with the bright-line rule that existed pre-Williams (essentially the approach of the Williams dissent.) If the government wants to introduce scientific evidence, call the analyst who performed the test.

This drew a dissent (on many grounds) from Judge Thompson. In important part, she wrote that the D.C. court’s previous post-Williams decision (Young) did not forbid out-of-court testimony in circumstances like this. (The majority described Young as stating a rule that gave a “sufficient” condition for what counts as “testimonial,” but not a “necessary” one.) And she pointed out that five Justices of the Supreme Court would undoubtedly allow this testimony, albeit for various reasons. But in the end, it was the “various reasons” that troubled the majority. If there’s no single reason, then there’s no rule for the lower courts to apply.

Paradoxically, though DC and NC have reached totally different results, both of their approaches also seem to violate the rule of “counting to five.” (Not a real “rule” — as this case shows, the courts are not actually supposed to speculate on what five Justices would rule, but rather are supposed to follow existing rules as best they can.) And this paradox perfectly illustrates the importance of the Supreme Court providing clear guidance (or at least, majority opinions) on important questions. Without this guidance, results are unpredictable — and the meaning of the United States Constitution depends on what state or territory or circuit you live in.

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