Puerto Rico Association of Criminal Defense Lawyers

Rachel Brill Appointed to Advisory Committee on the Federal Rules of Criminal Procedure

PRACDL Charter Member Rachel Brill has been appointed by the Chief Justice of the United States to serve on the Advisory Committee on the Federal Rules of Criminal Procedure. This is a great distinction and honor.

Rachel has served as PRACDL Treasurer, 1992-2004; and as a Board Member, 2004-2005. She is an accomplished trial and appellate lawyer. She is in charge --on behalf of NACDL-- of assisting counsel here in San Juan in preparing for oral argument before the First Circuit.  She has chaired PRACDL's CLE Committee and is also a member of the Amicus Committee and our Lawyer's Assistance Task Force.  More recently, she has been involved with other PRACDL members in valuable workshops for criminal defense lawyers.  She has served as Professor (1993-2002) and Adjunct Professor (2004-present), at the Federal Criminal Litigation Clinic, University of Puerto Rico.

Rachel, PRACDL congratulates you!

When the Not-So-Smart Crowd Governs ...

Last year we had this bill [H.R. 4547] in Congress - in the midst of the Blakely decision -- that would have added more mandatory minimum sentences. I wrote about it at Macondo Law in this post:

Drug Points to Start Carding Customers?

More Mandatory Minimums? Even before Blakely was decided, Rep. James Sensenbrenner (R-Wis.) introduced a bill that would increase from one year to 10 the mandatory minimum sentence for anyone 21 or older who sells any amount of a controlled substance (even a single joint) to someone under 18. A second offense of this sort would trigger a mandatory life sentence.

This year we have pending H.R. 1528, the crazy sentencing bill with the so-called Booker-fix, of which I wrote about here and here.

Apparently not having satisfied its addiction to ever harsher punishments (of others, of course), the House of Representatives is now considering H.R. 1279, the "Gang Deterrence and Community Protection Act of 2005," an extremely harsh and unnecessary bill that includes many new and increased federal mandatory minimum sentences. As Families Against Mandatory Minimums (FAMM) describes the bill:

• Adds many new mandatory minimum penalties to the criminal street gangs statute;
• Broadens the definition of a street gang, and changes the definition of crime of violence to include drug trafficking crimes that involve no violence whatsoever;
• Increases from five to seven years the mandatory consecutive sentence for carrying or possessing a firearm in connection with a drug trafficking offense or violent felony;
• Increases the mandatory penalty for discharging a firearm from ten to 15 years, and
• Makes defendants convicted of “conspiracy” to commit drug trafficking or crimes of violence eligible for the mandatory consecutive firearm penalties if a firearm is involved, even if the defendant did not possess or use the firearm.

You can access FAMM's initial assessment of H.R. 1279. (PDF)  And you can see this post at TalkLeft, which explains that the ACLU has also taken action, and it also mentions that

There is a Senate version of the bill, S. 155, introduced by Sen. Diane Feinstein and Sen Cornyn, John [TX]; Sen Grassley, Chuck [IA]; Sen Hatch, Orrin G. [UT] and Sen Kyl, Jon [AZ].  H.R. 1279 is an outgrowth of last year's Feinstein-Hatch bill, which we lambasted here and here as fear-mongering and political pandering.

For a non-legalese explanation of the current bill, see this Modesto Bee article. As to what's wrong with increasing the number of juveniles transferred to adult court, see this Vince Shiraldi op-ed.

The Latinos for America Blog explains why this bill will make the problem of gang violence worse, not better.

Now what was that you were telling me about Booker and how the Judge would now be able to sentence your client to a reasonable term rather than these outrageous guidelines?

Update: The House Judiciary Committee's Report (No. 109-74) on H.R. 1279. The House is scheduled to vote on this on Wednesday, May 11, 2005.

Update 2: The House passed H.R. 1279.

Is this why we cannot have cellphones inside the courthouse?

Assistant U.S. Attorneys are allowed to have their cellphones inside the courtroom (under a court-created "law-enforcement duties" exception to the general ban), and I can only imagine that agents are allowed to do so as well. Up until now I always thought that it had something to do with one of two matters:

• Court security
• Judges either not wanting to hear a phone ring in the middle of a proceeding or in the lobby, or simply not wanting someone calling a radio station to have the court proceedings broadcast over the airwaves.

Well here is a new one I had not thought of. It appears that there was a rumor in some courthouse that someone from inside the courtroom was sending text messages (either using a blackberry or a cellphone) to a sequestered witness regarding testimony inside the courtroom. See Text Messaging and Trials: A Volatile Mix at law.com.

But what most caught my eye in that article was the following:

Most recently, wireless gadgets caught the ire of the Judicial Conference of the United States, which recently sent letters to chief judges in all federal courts warning them of the security risks associated with wireless technology. The Judicial Conference, which does not have a policy specifically on wireless communication, advised judges to adopt policies to regulate the use of such technology in the courts.

I do not know whether the District of Puerto Rico has adopted any such policy beyond the banning of all cellphones by attorneys (unless you happen to be an AUSA) and the public. That has been in effect for some time now, and I do not know when the communication from the Judicial Conference took place. It seems to me, however, that there should be no disticntion between Assistant U.S. Attorneys and other attorneys. The law enforcement rationale is not convincing. After all, they could have a beeper if someone needed them that badly, and then they could call at the next available moment ... from the pay phones, just like we have to do.

Update: For a good reason why the Court should allow all attorneys - or none at all - to use and have their cellphones inside the courthouse (or at the very least to have) see my post at Macondo Law: There's a Crook at the Federal Court's Security Checkpoint. To this day the theft remains unsolved.
 

Pro Bono Redefined

See Pro Bono, Pro Profit? by Anthony Lin at law.com and ask yourself whether redefining pro bono in these terms is such a good idea. I have mixed feelings about it.

ACLU-PR: Capital Punishment Panel Conference

The ACLU of Puerto Rico will be holding a Capital Punishment Panel Conference on May 24, 2005 at 7:00 p.m. at the Inter American University, School of Law - Theater, and has sent out an invitation for all PRACDL members to attend.

The conference participants will be:

• Alvin J. Bronstein - Director Emeritus, ACLU Prison Reform Project; Board member of Penal Reform International (London); World Organization Against Torture (Geneva);
• Jeff Gamso - Legal Director, ACLU of Ohio; Capital Punishment Defense Bar;
• Juan Meléndez - Puerto Rican sentenced to the Death Penalty, 17 years on Death Row

The moderator will be Juan Ramón Acevedo, Esq. (who is also PRACDL's Vice President).

For more information you may email ACLU Puerto Rico.

"Bert, we hardly knew ye."

U.S. Attorney H.S. "Bert" García has been at the helm of the U.S. Attorney's Office in Puerto Rico for some three years now.  Rumor has it that he was brought in from Texas to put the house in order, and that a judicial appointment would be likely at the end.  If you ask defense attorneys, none seem to have ever met him in those three years.

For whatever reason, Bert has now decided he wants to try a case. So he makes an appearance in a case that already has a trial date scheduled (and has had some three previous prosecutors), and then moves to have the trial continued because (1) he has already purchased tickets (nonrefundable, he says) to travel to his home in Texas during part of those dates, and (2) he must also attend a meeting with the Attorney General in Phoenix between April 20-23, which means he will be out of Puerto Rico for most of April.  Well, Bert, didn't you know about this when you decided three years into your stay in Puerto Rico that you wanted to have a showboat trial?

The article reporting this appeared in the Spanish language daily El Nuevo Día Interactivo.

Update & Correction: One defense attorney has contacted us to tell us he has actually met Bert.

Prosecutor Calls Blake Jurors "Incredibly Stupid"

A case of sour grapes?  CNN Law reports that "District Attorney Steve Cooley says Robert Blake was 'guilty as sin' and the jurors who acquitted him of murder were 'incredibly stupid.'" Hat tip to CrimProf Blog.

It will be a Quiet Place

The New York Times has this article As Town for Deaf Takes Shape, Debate on Isolation Re-emerges. It will sure be a quiet place. Can you imagine being a lawyer there and prepping up for trial? I'm sure the lawyers will use great visual effects, but I'm just not quite ready for those closing arguments using sign-language.

PRACDL Members in CJA Committee and Comité para Revisar el Manual de Instruciones al Jurado

The District of Puerto Rico's Criminal Justice Act Committee counts with six practicing criminal defense lawyers, and five of these are proud members of PRACDL:

• Jorge L. Arroyo, PRACDL immediate past-President
• Hector Deliz, PRACDL member
• Joseph C. Laws, Jr., Federal Public Defender and PRACDL Board member
• Miriam Ramos-Grateroles, former PRACDL Board member
• Francisco Rebollo-Casalduc, PRACDL member

Any of these PRACDL members can assist you with CJA related matters. Another invaluable resource is Marlene Mortera, at the Clerk's Office, who does such a great job of scrutinizing and moving along towards payment all our CJA Vouchers.  To describe the manner in which Marlene handles the job from the lawyer's view can be done in just one word: outstanding.

We have also leaned that PRACDL Members Harry Anduze and Francisco Rebollo-Casalduc have been appointed to serve on the Commonwealth of Puerto Rico Supreme Court's Committee to Revise the Jury Instructions Manual. Congratulations to both!  Don't forget Blakely!