The practice of law frequently feels incredibly constraining; we are bound by rules, statutes, precedent, persuasive authorities. No one encourages us to think outside the box, because that sort of thinking is disruptive to the neat, clean and orderly way in which people perceive the law. But as criminal defense attorneys the very essence of what we do should be disruptive to the very neat, clean and orderly way in which the government wants to lead our clients to the prison door. Thinking outside of the box, finding the loose ends and loopholes to what everyone deems ‘clearly established precedent’ should be the heart of soul of how we approach every single case.

The word ‘loophole’ has so many negative connotations. Lay people believe this means we are somehow pulling a fast one and circumventing what is otherwise well-deserved punishment for our clients and thwarting the imposition of justice. But almost always the loophole is found in the very foundation of our system of government – the Constitution. Things we take for granted as the ‘law’ are sometimes contrary to the document that establishes how police and prosecutors should conduct themselves in the criminal justice system and the clearly established precedent succumbs to the constraints of the Constitution.

A few weeks ago, a client asked whether a search warrant was obtained for a pole camera that was focused on a residence. My immediate reaction was that no warrant was required for a pole camera since it was a visual inspection (albeit one that can last for a very long time), but I looked it up just to be sure. Much to my surprise, neither the Maryland Courts nor the Fourth Circuit has decided that a warrant is not required for pole cameras. In fact, I could not even ascertain that this was something that anyone had ever challenged; it seems we’ve simply taken for granted that pole cameras are able to be placed in front of homes without warrants. This lead me down a rabbit hole of technology, surveillance and the Fourth Amendment. What exactly does the Fourth Amendment protect and should we be relying on our old notions of privacy rights when dealing with new technology? Is there an opportunity to reinvigorate the Fourth Amendment and potentially loop back around to challenge things we take for granted, like pole cameras?  

In order to do this, we must begin at the beginning and re-read the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

This simple paragraph has been torn apart to make it easier for the government to do exactly what it protects us against. At its heart it says nothing more than that we should be free from government intrusion into our private lives and effects except in certain limited circumstances and generally such intrusion should never occur without a warrant. This maxim has been riddled with so many exceptions that it barely exists anymore. However, with emerging technologies we have a chance to revitalize the Fourth Amendment. Thinking outside of the box is essential when teaching judges how technology impacts privacy concerns and there is an exciting opportunity to go back to the basics.

We begin the inquiry into how we should look at technology, surveillance and privacy with United States v. Jones. 565 U.S. 400 (2012).In Jones, the Supreme Court was asked to decide if warrants were required for GPS tracking devices placed on cars to detect their movements. Justice Scalia authored the opinion for the Court, noting that “at bottom we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Id. at 407. Despite the newness (at that time) of GPS technology and GPS tracking, Justice Scalia reiterated that the basic premise of the Constitution was the protection of people against trespass by the government, and that the ease of new technologies doesn’t eviscerate that premise.

Even though the technology was new, the concept of protection against government intrusion into privacy was not. And, if a warrantless search would be deemed unreasonable in the 18^th century, then it should not be acceptable now.

It is this reasoning that leads us to the rule that visual inspections do not violate the Fourth Amendment. Eyes cannot trespass and if something is visible to a person standing in a public place, even if it is within the curtilage of a house, then a warrant was not required. Ergo, the government’s belief that a GPS tracking device was nothing more than a superior and enhanced way of watching a car travelling on a public roadway going from one location to another. The device acts as nothing more than technologicially advanced eyes. However, as the concurring opinion in Jones noted, the police used the GPS device not to track Jones’s “movements from one place to another,” but rather to track Jones’s movements 24 hours a day for 28 days. Id. at 414. It wasn’t that the tracking of any one of these movements was the ultimate violation, but the fact that the GPS was able to track him as he moved around, discovering the patterns of how he lived his day to day life.

 This is, fundamentally, how surveillance works with new technology. It doesn’t just make the job of the investigator or police agency easier, it pries much deeper into the most intimate details of our lives, implicating even more fundamental privacy concerns.

Nowhere are these concerns more relevant and prevalent than in the discussions of cell phones and search warrants. In Riley v. California, the Supreme Court decided that unlike a wallet or crumpled up papers in a coat pocket, a cell phone could not be searched even incident to arrest, without a warrant. 573 U.S. ___ (2014). When we look at the words of the Fourth Amendment, we must not forget that a warrantless search must be reasonable, and the privacy rights implicated in a warrantless search must be one we as a society are willing to give up. A cell phone can be opened, just like a wallet; it can be flipped through and skimmed across, just like a wallet. However, the Court held that unlike a wallet, the items stored in cell phone may very well be like those stored in our homes. Yet, we now carry those same items with us everywhere and that we did, in fact, have an expectation that a police officer would not be privy to all our photographs, diaries, and texts with our spouses, simply by going into our pockets.

This brings me back to my original point about my client and the pole camera and how I took for granted that pole cameras were nothing more than visual inspections of the outside of a home. But the more I thought about it, the more it became apparent that it was closer to a GPS tracker in what this type of surveillance can show. A pole camera is usually placed 20-30 feet above ground. Most humans don’t go much higher than six feet which substantially limits their visual range. Most pole cameras are left up for days or weeks at a time, they are on 24 hours a day. Most of us would notice a car or a person sitting in front of our house 24 hours a day seven day a week for weeks at a time. We’d probably call the police (not realizing it was the police out there in the first place.) Pole cameras do much more than simply track what a person from the street could see, and yet we are told that this technology only simplifies regular police work. They can rewind, fast forward, pause and zoom. A pole camera can tell the police if you are going outside to sneak a cigarette at 2 am or if your mother-in-law drives up to the house and then decides she doesn’t want to deal with you and backs out. A pole camera can see beyond foliage which may block a house from a roadway, it can see above and around trees, fences and ignores “do not trespass” postings. And while ‘clearly established precedent’ may state that this type of surveillance passes constitutional muster, the newer cases that deal with the latest technology may be able to give us insight into how to challenge these notions. Technology that can make the governments job easier should be lauded and used; however, technology – whether it be old or new – should not be used to intrude into areas where a warrant would otherwise be required.  

We lawyers are always walking a fine line between respecting what has come before and challenging the status quo. But as technology changes the way in which we live our lives, we must be willing to step outside our comfort zone and find ways to curtail what could otherwise be unmitigated warrantless government surveillance. It is incumbent upon us to find ways to give strength to the Fourth Amendment and the brand new landscape of technology is a great place for us to do exactly that.

The post How technology can revitalize the Fourth Amendment first appeared on Not Guilty No Way.

Aquilina depo

Judge Aquilina civil case

The post Uploaded civil motion to dismiss first appeared on Not Guilty No Way.

I feel like I have to start over again. In Simone DeBeauvoir’s “The Second Sex” she writes that “[a] man would never get the notion of writing a book on the peculiar situation of the human male. But if I wish to define myself, I must first of all say, ”I am a woman”; on this truth must be based all further discussion.”

Let’s begin with this as well. I am a woman who was born in Kandahar, Afghanistan and emigrated to this country when I was 18 months old. Our intention was always to return. But, as you can tell, that didn’t happen. If you forget these salient points while reading this blog, my tweets, facebook, instagram, whatever – then that’s your fault not mine. I am letting you know that my ideas, thoughts, opinions are all colored by this. I am a brown woman raised by a devout Muslim woman and a surgeon father. I’ve moved over a dozen times. I am a criminal defense lawyer in private practice. I have twin boys via IVF. This should give you more information than you need in order to discern where I’m coming from.

When I started this blog 14 years ago (maybe it’s actually been longer, I don’t recall right now) I had four readers. I was anonymous, or so I thought. When I go back and read those old posts it is clear to me that I gave everything away. I talked about the courthouse where I worked in detail, the cafeteria, the judges and the lawyers. There was nothing really anonymous at all except I didn’t use my name. At some point, when I realized that everyone knew who I was anyway, I started using my real name. And really, what did it matter? Almost no one read the blog, there was a small group of young lawyers talking about t.v. shows and clothes and the latest antics of those around them. It was a good way to blow off steam. After all, we were lawyers, we were criminal defense lawyers. No one really cared about what we had to say about anything.

No one listened anyway.

At some point more people started reading and I got caught up in a wave we fondly called ‘the blawgosphere.’ That’s dead and I am glad. It was a misogynistic place, but one where I wanted to belong. Because as a brown woman it meant that I was ‘someone.’ I mean, I was a criminal defense lawyer and a damned good one. I knew as much, if not more, than all the dudes who were blathering on in these blawgs. So I wrote about the law, I wrote about injustice and at some point I got a ticket to join the club.

It was just like any other club. You are all excited about going, you get dressed up, you have all the attendant nerves and anxiety “Will they like me? Will I fit in? What if I’m trying too hard?” And then you show up and it sucks. The people suck. The atmosphere sucks. The drinks are watery and back then you could still smoke in certain areas of clubs so – it smelled bad too. I would get messages from the in-crowd of the blawgosphere telling me what to write, why my writing was wrong, why I was wrong. Or, the most mature of all “I wrote about that first.”

Ah, good times. No, not really.

I have always had words in me. And the words I had usually revolved around pretty complex issues that don’t lend themselves to short, neat blog posts. Things like justice and inequality are not meant for 800 words. My fierce opposition to the death penalty (after being proponent for quite some time) cannot be summed up in one article (maybe two.) My feelings about race and class in our justice system would take weeks and weeks. And addressing the misogyny and sexism in our profession would need a whole chapter. The #metoo movement has lead me to reexamine everything I ever thought about myself as a woman in a field dominated by men; the paths I took to get to the point I’m at now and what I could have done differently to protect my sisters at law.

There were confrontations with those who lead the blawgs, some public  – but with others just a silent withdrawing of affection and respect. I had to realize that criminal defense lawyers don’t always believe in justice or equality. We don’t all disavow the death penalty or mass incarceration. We don’t all believe that women should be heard.

If you go through my old blog posts you will see a sort of fuzzy thinking. I’ve always been the touchy feely sort. I’m not a lawsplainer all that often and prefer to focus on the aspects of law that touch on us as human beings. I want you to know that this shit is real. It happens to real people and it is hard and it hurts and it changes people. I want you to know that all of us are born and then made and that each of us has a thing inside of us that makes us who we are – that none of us is the sum of our worst days and that there is almost always a part of each person that is good. I want you to know that this could happen to you. The cops could show up at your door. It could be you next, or your brother or your daughter. I want to make it real for you. Maybe because I am a mom, maybe because I am a woman. Maybe because of everything I am and because I think it matters because if you understand it, if you feel it viscerally inside of you, maybe you will help us change it.

Then people will listen to us.

The post On the blog and why it is what I am. first appeared on Not Guilty No Way.

We have been posting federal legal filings challenging the Trump Executive Order. Yesterday, the Virginia lawsuit was amended. Lots of great new bells and whistles. You can find the document here: AmendedComplaintEDVA

The lawyers at Seddiq Law have been camped at Dulles the past two days fighting the Trump Executive Order banning entry into the US.

There are people here from various outreach organizations. We are are helping coordinate information from the ground to those litigating in the offices.

If you have information you can email me at justin.eisele@seddiqlaw.com. You can also text me at 410.940.9734.

Here is a collection of the orders from across the US. Orders here are from Mass, VA, WA, and NY.

-Justin

Virgina-Ruling-TRO-Order-Signed

New York Ruling

MassRuling.

Seattle Ruling

LosAngelesTro

CentralDistCalOrderReturned (Judge ordered someone already removed BACK into US)

9thCircuitAmicusBrief (Corporations)

KOREMATSUAmicusBrief

ACLUAmicusBrief

HIASAmicusBrief

9tCirCourtOrder

Here is the memorandum opinion that supports the preliminary injunction issued in the ED VA on February 13, 2017: Aziz.MemorandumOpinion2.13.17

En Banc Briefing:

TrumpEnBancSuppBrief2.16.17

StateBriefEnBanc2.16.17

The post NoBanNoWall- Litigation Documents- UPDATED first appeared on Not Guilty No Way.

Oh but why this poem? Why?

I don’t know. Other than when I thought of the title for this post I thought of this poem that I’ve loved for so long and I wanted to share it with you. I haven’t shared many over the 12 or 14 years we’ve been here together, so I appreciate the occasional indulgence.

This past week I was asked to speak on a panel. They flew me to Los Angeles and I stayed in a nice hotel near a beach.  I talked to people about social justice and movements and what inspired me to start American Muslim Women. The other panelists had excellent stories and histories filled with activism passed down from their parents and grandparents.

Mine did not. My story of why I started the PAC isn’t filled with decades of oppression or suppression or angst. It is, instead, a story of refusing to fall victim to what it was society expected of me, wanted of me. We love a good victim and we cry if they die at the end but man, what raw emotion – right? I wasn’t going to give in to that.

But back to my panel – look friends, you know what I do every day for the most part (other than baking and cooking and ranting on twitter.) I consider this job social activism and I consider the work my colleagues and I do nothing but pure activism. We are literally the only thing standing between the force of the State and a human soul. How much more activist can a person get? And although we aren’t the ones who face the harsh consequences of the terrible power of the government when they don’t get their way, we know that there will be consequences for us for not backing down and giving in. This activism is what makes starting a PAC almost feel like child’s play.

No, I get it. It is important. For sure it is. But it isn’t as if I haven’t had a great training ground for this. The bar is set pretty high – if no one is going to end up in prison then it’s going to be a good day. That’s it. That’s the standard. No one in jail? We are good to keep moving forward. Someone in jail? Let’s see what we can do to correct that.

I write this today because it is Martin Luther King, Jr. day and today I get to take my boys on a tour of the West Wing. This is, indeed, an incredibly moving event for me. I’m not enamored of our President for lots of reasons, primarily because he left a lot of my clients writhing in agony when he promised to help. But, I am not blind to the truth of what it is he stands for. He is our first black President and our country elected him in great numbers. He has broad support and appeal and has not brought private disgrace to our Nation’s home. These things cannot be discounted or dismissed. It is important.

Eight years ago my brother and I sat on the steps of the Lincoln Memorial to watch Obama (kinda, it was really far away) get sworn in. It was powerful to say the least. History was unfolding and we were – finally – going to see MLK’s dream fulfilled. Finally. Today, I am going to take my kids to see where our President has worked for the past 8 years. On MLK day. His last one. It seems a perfectly fitting ending to this era.

The title of this post is hope. I’m devastated by what our country has chosen to do. In a desire to show some of America just how angry they are, they have elected a man who has in no uncertain terms, told me and people like me he has no use for us. At no time has Donald Trump walked back the words he used about Muslims nor has he sought out friendship with our communities. He acts as if we do not exist as Americans in this country and while he has extended a weak hand to the African American, Spanish speaking and Jewish communities, he has ignored us completely. While there are Muslims who support Trump, they are the exception to the rule. Why should we support a man who may claim to not be a war-mongerer (they all claim this) and want to drop bombs on our mother-lands, but acts as if he would prefer to not have us as United States citizens? He won’t be kinder to my clients than Obama was. And he certainly won’t be kinder to those Americans who need a safety net.

And yet, there is hope.

If there wasn’t hope this blog would have ceased to exist years ago. As it is, it continues to pump out letters and words and sentences that sometimes form cohesive paragraphs which contain ideas and thoughts. I am here. And so are you. We breathe. So we hope.

At the end of the panel (that’s where this all started, remember?) we were asked to give advice to the members of the audience on what they should do if they want to start a movement, to become activists. How would I know how to motivate people to do a thing? Since I am not a professional panelist, I did what I thought best – I quoted Eminem and told them they were just going to die anyway so why not do something?

Breathe in. Hope. Breathe out. Hope.

If this particular era is to end, and a new one beginning, isn’t it fair to think that soon enough this one too will end and another will begin? We should always be at the ready for whatever happens next. For the next post on MLK day. For all of it.

The post More hope – an MLK day post for 2017 first appeared on Not Guilty No Way.

Dear friends. Donald Trump will be our President in a few short weeks. No, this isn’t a bad dream. Yes, things may get worse. No, we won’t die unless there is a nuclear war. But that could always happen. Doesn’t that make you feel better?

I’ve written so much about fear. I sit here now worried that my words will fail me. They have so often. I’ve spent months writing about writer’s block (it doesn’t exist! If you have nothing to say don’t write anything! How narcissistic of you to write about what you are going through right now!) and I’ve spent years writing nonsense.

But most of the time, when the words come together right,  I’ve only been trying to tell you what it is like on this side. Sometimes I give you the law, but most of the time I plead with you to please please please understand that the system in which we work is broken, unjust, unfair. It isn’t designed to rehabilitate or to reintegrate, and when someone comes out the other side whole it is nothing short of a miracle. One we celebrate and cherish because it is so rare. We don’t believe in mercy –  for all our talk of second chances, Christian values, or paying debts to society, we are a system designed to annihilate, to crush and seek vengeance. No way will we not get our pound of flesh.

I say we all the time, because it is we. This is us. All of us. Yes, even you. You don’t think so? Who’d you vote for in this election?

Guess what? Doesn’t matter. None of your votes made a difference to anyone I’ve had the sorrow and privilege of sitting with in the 17 years that I’ve been doing this job. No elected official showed up to apologize for mandatory minimums, for lifetime sex offender registries, for taking away housing if your kid sells drugs in your house. No one said I’m sorry I did this to you.

No one is sorry. We think it’s all for the best. For the greater good. Law and order. I know. I’ve watched this for years and years and years. I call you all the ‘walk between the raindrops crowd.’ (You should read every one of these links. You will learn I am not what you think I am. None of us actually is.) What do you have to hide? Why do you care if a cop pulls you over, a kid is shot because his hands didn’t go up fast enough, your house is searched with a bad warrant? All humanity is nothing more than disposable bags of flesh. We kill you with a needle and if that isn’t good enough we will give you the option of getting electrocuted to death instead.

This shit scares me. It has scared me since 2001 when I became a defense attorney, a job I once thought was for losers and leftists who didn’t believe that people who did bad things should pay for their crimes. I know now that none of that is true. I believe people who do bad things should pay for their crimes and that we devise a system that is just and fair and that we actually provide people with the tools to defend themselves against the awesome power of the state. And then I believe that we should have another system that prepares people to come back out into the world and become productive. (I might still be a loser and leftist of different proportions, though. You can be the judge of that.)

I believe people shouldn’t lose houses. They shouldn’t lose their ability to go to college. They shouldn’t be placed on registries for life. They shouldn’t be separated from their families because they are deported for minor crimes. I don’t believe we should be incarcerating black men at astronomical rates. I don’t think we should take our progress, however little or great that is, for granted. I think that we should always realize the danger to those least able to protect themselves is always there and that we must forever be brave.

And I want you to realize that it has ALWAYS been this way. One of the links above is to a post I wrote about Obama’s first term. Go on, read it. Then come back here and tell me that this is different. I’ll believe you because it is. It’s worse. But it is worse because we were all asleep at the wheel believing that we were doing was okay. It has literally never been okay. Ever. I’ve begged you for years to listen to what I was telling you and yes, today I am going to “I told you so” because well, it’s my blog and that’s what I choose to do. And because maybe, this time you will listen.

I’m not afraid of Donald Trump. I’m afraid of us. I always have been. And yet, I will always try to be brave.

The post I’ve always been afraid. I’ve always tried to be brave. first appeared on Not Guilty No Way.

Wells Fargo committed criminal fraud against its customers. For a thorough reporting of the insanity, I suggest reading Matt Levine’s article. Employees of the bank opened 1.5 million bank accounts and applied for 500 thousand credit cards, using their customer’s personal identifying information, without their consent or knowledge.

Federal criminal defense attorneys are well aware of the crime of Aggravated Identity Theft as codified under 18 U.S.C. 1028(A).

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

This crime requires two years of mandatory prison time. We have clients every day who are bullied into plea deals when faced with jail time. If we agree to plead guilty, the prosecutor may agree to drop the mandatory prison count. But, only after kissing the gold off of the AUSAs pinky ring. (and sometimes not even then)

I’ve had clients who took literally 1/1,000 of the amount of funds Wells Fargo took and get sent to jail for 5 or 6 years. Why? Because crime pays (if you can pay)

I’m not suggesting we send these poor saps at Wells Fargo to prison. Corporate greed demands that the lower level folks commit acts that are immoral and unethical. (sometimes illegal) And, If anyone gets caught the company just writes a check.

What I am suggesting: The DOJ policy on prosecution of financial crimes is completely incoherent and fully unethical. The rich or those “too big to fail” are protected while the poor are prosecuted. Change your ways DOJ.

The post Crime pays (if you can pay) first appeared on Not Guilty No Way.

Writing seems simple – you sit down and let the words come out of you. Sometimes they flow easily, naturally. You have a thing to say and you know who your audience is. (You, gentle reader have always been my audience. I write for you even though ‘they’ say I should write for myself. I have a journal for myself. You won’t see what’s in there until I am dead. Why would I write all of this for myself in this way? It makes no sense.) Then you explain the thing, you tell people what you think about the thing.

Most of the time I have an emotion I want to evoke in you. Usually, that emotion is outrage. I want you to be angry at what is happening around you while you are busy shaking your fist at other things (things I don’t think matter much and, quite honestly, all the fist shaking in the world won’t change) and hastily posting on social media. I want you to have more knowledge of the law and this system of so called justice under which we work. Look, this is your country. This is your stuff. People literally died for your rights. Literally in the literal sense not the figurative literal sense. And I want you to, for 3 minutes a day – because I write short blog posts – I want you to feel how angry I am. I want you to feel angry too. I don’t know what you do with that anger after you leave this page. Do you talk to your friends and family. Do you mention what you’ve read and are you moved to look up other things and fill your bag of knowledge even more?

I hope so.

I have a voice and I am lucky enough that I get to use it. I get paid to use it. It’s part of my job. And here, on this page, I get to have an even bigger voice that reaches even more people. I’ve written about war and rape and due process and Afghanistan. I’ve written about having writer’s block (which plagued me for years) and I’ve written about how miserable and wonderful my job is, this life is, my kids are.

And for 12 years many of you have joined me on this journey. And I thank you for that. I thank you for living through the shitty writing and typos and for disagreeing with me publicly. The nature of blogs has changed. We don’t have the same sort of inter-connectedness we used to have where legal bloggers played off one another. To be honest, I don’t miss it. It was a very stressful way of existing in writing – if someone had written about something before, not giving credit or linking to that person (even if, perhaps, you didn’t read the post) was viewed as a horrible offense. Popular bloggers would keep you off their blog roll if you didn’t play nicely with them. In fact, (I was recently taken off a blog-roll because of my lack of gentility.) The ability to have a voice and use it freely and fully was constrained by being accepted by the in-crowd. It wasn’t much different than the mean girls’ table in middle school.

No thanks.

I’ve never owed anything to anyone but you, dear reader. The law is a varied and vast field with much nuance and even more misunderstanding. If we can continue to have a discussion where I try to tell you what I can, teach you what I know, and let the rest of it be me saying WHAT THE FUCK I will feel this endeavor a success.

The post Your voice first appeared on Not Guilty No Way.

For over a decade, Mirriam has been railing against the injustices that frequent our courts.  My piss n’ vinegar boiled when I heard about the recent case, U.S. v. Annappareddy, and Mirriam graciously lent me space to rant and rave about prosecutorial misconduct.

Sandra Wilkinson, head of the Major Crimes Division at the United States Attorney’s Office in Baltimore, personally directed the destruction of evidence in this case. That’s right. Destroy. She didn’t misplace it in a cluttered office. She affirmatively and unapologetically destroyed it. The accused, Annappareddy, was a pharmacist. They accused him of getting paid for scripts he didn’t deliver. They destroyed receipts and logs that could have proved his innocence.

Mirriam and I talk exhaustively about the unfettered power prosecutors wield in the federal court system. Prosecutors threaten double digit prison sentences to coerce people into guilty pleas. This happens every damn day. Is that not enough? Do prosecutors need such maniacal control of outcomes that they have to destroy evidence and put on false testimony? This shit has to stop.

Judge Russell, as of last Thursday, had already ordered a new trial because of false testimony put on by the feds in the first trial. More on that as we progress. But now, procedurally, he had to decide if he was going to let the prosecutor re-prosecute him after their outrageous conduct in the first trial. You should’t be able to cheat and lie and get another stab should you? Judge Russell is no bleeding heart jurist. He will let you put on your case as a defense attorney, but you aren’t ever going to hear a prosecutor complain about him giving some wussy jail sentence. With that information, like a soothing bedtime story from your daddy, lets read straight from Judge Russell‘s ruling/roasting:

The failure to disclosure (sic) is in violation of Brady, the history of late disclosures and the promotion of false significant testimony in this case does shock the conscience of this Court. …..Furthermore, the Court is very hesitant to invade the province of the Executive Branch of government. However, the Court finds that the violations of Rule 16 and the defendant’s Fifth Amendment Constitutional right to due process due to the aforementioned conduct of the government including its witnesses at trial is sufficient to require the Court to enter an order dismissing both Counts 1 and 2 of the second superseding indictment with prejudice. (Sentencing Transcript p. 59-60)

We win right? Justice wins right? Yah right. This poor sap and his family went through hell for 3 years and the prosecutor made a mockery of our judicial system. Nobody wins. Unless, we take action.

Sandra Wilkinson asserted to the court that she didn’t think she did something wrong. How many other times has she done this? She is not a rookie prosecutor. Wilkinson is a long-time AUSA who oversees other prosecutors. She has had the role of mentoring and training newer AUSAs. Did she teach the practice of destroying evidence while cases are pending? I don’t know. I suspect (and hope) that skilled defense attorneys will use this well-documented instance of outrageous behavior to delve further into other cases handled by this prosecutor (or the office as a whole).

In addition to evidence destruction, the government put on two separate pieces of materially false testimony that directly led to Mr. Annappareddy’s conviction. After the first trial, new defense counsel Schamel and Greenberg engaged in intensive evidence and trial transcript review. The following was revealed.

In 2012 Mr. Annappareddy received an email from Jigar Patel, an employee of Mr. Annappareddy’s business. The email referred to concerns of Mr. Patel’s regarding the necessity of reversing some insurance claims. The Government argued at trial that this email made references to unlawful practices of the pharmacy and that Annappareddy’s lack of of response was evidence of his guilt. In closing the government argued:

“[T]he Jigar Patel e-mail that is so damning in July of 2012, that [a prosecutor] showed you. You just have to go back and read that. And the fact that Mr. Annappareddy didn’t respond to [it], it speaks volumes.”
(Trial Transcript, December 1, 2014. at 237:23 – 238:2

The government agent testified that she reviewed all relevant phone records for the time period the email was sent. The agent testified, unequivocally, that Annappareddy did not respond. This was false. The defense discovered that the government had not even requested the appropriate phone records to support their assertion of Annappareddy’s silence. The government did not request phone records for Jigar Pate’ls cell phone number for that date. Further, the records show that the government did not obtain phone records for Mr. Annappareddy or Jigal Patel for the appropriate time period at all. Defense counsel recovered the right phone records that clearly showed that there had been contemporaneous communication between Patel and Annappareddy.

At the recent motions hearing AUSA Wilkinson admitted that the agent didn’t review the applicable phone records for July 25, 2012 prior to testifying. The Court found that the agent’s testimony was false. The Court then admonished the AUSA Wilkinson for vouching for the agent at the hearing. Prosecutors vouch for their agents all of the time. They are rarely called on it. But, they were here!. Judge Russell:

But I’m interested in the facts. There’s some significant evidence that was put before this jury that this gentleman was convicted under, if it weren’t for the resistance of the government in the motion for new trial that, because of that resistance, if I let it go, he’d be in prison right now. He would be in prison. And the Court would have sentenced him to prison. But actually, he shouldn’t be in prison, because his constitutional due process rights were violated, and they were violated by mistakes the government made. (Tr. 18)

Prison. Russell flat out said he was about to send this guy to prison. When the government lies and cheats people go to jail. Period. This case is Exhibit A.

As if this case wasn’t outrageous enough, the government artificially inflated the dollar amount of fraud in this case in order to give the defense little hope of success. If you try to convince a jury of a few thousand dollars in fraud you might have some reasonable doubt as to whether or not it was intentional. (especially a high-volume business) Prosecutors can fix such a dilemma by jacking up their amounts. They also inflate these numbers because it gives them a big scary hammer to wack people with.  Many times defendants plead guilty in federal cases under the threat of daunting jail sentences created by such ridiculous estimates.

At various points during the prosecution the government came up with wildly different amounts of $ loss caused by Mr. Annappareddy. The government expert first testified that the loss was about $4.5 million dollars. Later in the trial the same expert testified that the loss amount was around $2.4 million. The amount of loss actually became even lower through subsequent review and investigation. Of course, this all happened after Mr. Annappareddy was found guilty. Judge Russell again at the motions hearing:

I understand the methodology. I  understand the methodology is different. I understand that  MEDIC came up with a loss amount using another methodology  that’s different, that’s different. And you came up with an in-and-out methodology that is different but terribly flawed.  And that methodology, if the defense had it, then they would have been able to cross-examine Miss Hammond on the discrepancy. (Tr. 23)

Later, in the during Russell’s ruling, he found that the government was well aware of the risk artificially inflated $ loss and they did not disclose any of it to the defense team.

In the federal criminal justice system the majority of the power lies with the prosecutor, not the court. Defense attorneys must look into other cases handled by this prosecutor and we must also push for reform of criminal practice and procedure. There must be significant consequences for this type of behavior. If not, it will be repeated.

Judges assume that prosecutors are telling the truth about their case and their evidence. They shouldn’t and neither should you.

The post Case Dismissed first appeared on Not Guilty No Way.

In case you hadn’t heard, last week I started a Political Action Committee called American Muslim Women. The name was easy – I wanted to make sure that everyone knew we were Americans first and foremost. That’s the initial requirement. This group is pretty much limited to Americans. If you don’t identify as an American, if you don’t have any commitment to the well-being of the United States, then you know right away this group isn’t for you.

Next was Muslim. This is a secondary requirement and not even a requirement. It just lets people know that hey, this is going to be about muslims. If you are cool with that keep going. If you aren’t, troll away, I can take it.

Finally came the word ‘Women’ because, as Simone DeBouviour said, I am a woman before I am just about anything else. So, maybe I should have written Woman American Muslim but the membership is not limited to Woman. In fact, we most likely can’t function without men. So, women came last but only because it basically just describes the people for whom this organization was founded. It will concentrate on electing candidates and promoting policies that benefit American Muslim Women.

If you think that means Sharia Law, you’d be wrong because Americans don’t have any law other than the one in our statutes and caselaw.

If you think this means we are anti-choice then you are neglecting the fact that this is about women.

If you think this means we won’t fight against every limitation on religious liberty then you leave out the Muslim part.

Most telling though, is that most people don’t seem to know what a Political Action Committee is. Very well-meaning, and some not so well-meaning, people have suggested that instead of placing ads or doing x, y, and z, we should be educating people about our causes or maybe teach people about Islam so they aren’t so afraid.

Dear reader, there are places and people who do that. Those organizations don’t have Political Action Committee in their name. It is important to understand what these three words mean as well-

Political – meaning involved in civic life, politics, policy.

Action – I think most people have a very odd view of action. Action means doing things. While action can be teaching, to me action is running a marathon and not teaching people the best way to run a marathon.

Committee – It’s a group effort. While I love to be in charge of everything, I will have to include in my vocabulary words like coalition building and consensus.

If you don’t understand Islam or what it’s about or who we are, you should endeavor to find out in some manner. You should meet people who are not like you and then you may have a better understanding. There are issues that are important to me and to others that go beyond making you feel good about the fact that some Americans are also Muslim. I’m not here to show you what a good migrant I am and how I am not here to hurt you. If your knowledge of Islam doesn’t extend beyond memes and jihadwatch I don’t think anything I say will persuade you otherwise, nor will I waste time and, more importantly, money, trying to convince you that we are actually good people.

I am sorry you are afraid. But we are not here to allay your fears through educational outreach, warm fuzzy interfaith town hall meetings or pictures of us posing with GOP senators (although that part would be cool. The GOP should get on that.)

We are here to act. To promote women’s health, to address issues of poverty and lack of girls’ education in our communities (Shocker! We know what the problems are in our own communities and aren’t afraid of addressing them!)

Look, the reality is if people don’t feel like they belong they will turn inward. The best way to get people to feel included is to be involved in civic life, running for office and affecting policy. It’s good preventative medicine for all of the stuff people seem to be afraid of happening in the future.

Oh, and here’s a cool article in the Atlantic

The post New ventures and adventures first appeared on Not Guilty No Way.