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Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he'd received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a "simple little case," that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to "expend[ ] a tremendous amount of effort" on what the prosecutor characterized as a "silly issue." He ended his e-mail by asking, "Have you been hanging out with Carl Gunn?"

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as "simple little cases," litigating issues despite the government's view that they might be "silly," and "expend[ing] a tremendous amount of effort" on behalf of clients who have the full weight of the government thrown up against them – often with the government's view that the case is open and shut, or "simple" – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it's a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in "A Man for All Seasons" in response to his future son-in- law's exclamation that he'd "cut down every law in England" to get at the devil: "Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?"

I'm proud if "hanging out with Carl Gunn" means not just accepting the government's view that cases are "simple" and "little," that issues are "silly," and that we shouldn't expend resources on our clients. Hence the name of this blog: "Hanging out with Carl Gunn." I hope to offer some thoughts and ideas that the government may think are "silly," but I respectfully don't; that you can use in cases that the government may think are "simple," but aren't so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a "hanging out" together, there might be guest bloggers from time to time with their "silly" ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.

Blog Posts in 2012

37 results found. Viewing page 1 of 2. Go to page 1 2   Next

Sometimes They Can't Appeal Even When the Judge Is Wrong.

BLOG BULLETS: Legal arguments such as the proper interpretation of a criminal statute which also depend on the evidence don’t have to be raised pretrial, even if the evidence the argument is ...
Continue reading "Sometimes They Can't Appeal Even When the Judge Is Wrong." »

Don't Just Ask to Suppress the Involuntary Statement and the Evidence That's Fruit of the Poisonous Tree; Ask For a Full Kastigar Hearing.

BLOG BULLETS: The remedy for a coerced confession isn’t just suppression of the fruit of the poisonous tree but a full " Kastigar hearing." That puts the full burden on the government ...
Continue reading "Don't Just Ask to Suppress the Involuntary Statement and the Evidence That's Fruit of the Poisonous Tree; Ask For a Full Kastigar Hearing." »

More on State Cops Counting as Federal Cops Under McNabb-Mallory

I’m in the midst of Ninth Circuit oral arguments this week, so my next more substantive post will come next week, but I thought I’d share the attached briefs I got in response to my last ...
Continue reading "More on State Cops Counting as Federal Cops Under McNabb-Mallory" »

When Do State Cops Count as Federal Cops Under McNabb-Mallory?

BLOG BULLETS: McNabb - Mallory doesn't apply to time in state custody before being passed on to the fed's. But there's an exception if the state custody is part of a "working ...
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If You Don't Have Miranda or Misconduct, Think About McNabb and Mallory.

BLOG BULLETS: Think about the McNabb - Mallory rule in addition to Miranda and voluntariness. The McNabb - Mallory rule requires suppression of statements obtained after any delay of more than six ...
Continue reading "If You Don't Have Miranda or Misconduct, Think About McNabb and Mallory." »

Materiality and Intent to Influence in 18 U.S.C. § 1014 Prosecutions

Today, we have what's really Part 2 of Dan Broderick's blog last week on materiality and bank fraud related prosecutions. This post is on the related offense of false statement in a loan ...
Continue reading "Materiality and Intent to Influence in 18 U.S.C. § 1014 Prosecutions" »

Materiality Is Also Misdefined in the Ninth Circuit Model Instructions

Today, we have another post from Dan Broderick, who did a guest post four weeks ago (see "Intent to Defraud Is Misdefined in the Ninth Circuit Model Instructions," linked at the right). ...
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One Last Piece (at Least for Now) of Good News on the Modified Categorical Approach

BLOG BULLETS: A recent Ninth Circuit opinion narrowly reads Aguila-Montes de Oca Only facts necessary to the factual basis for the plea on which a prior conviction is based can be considered under the ...
Continue reading "One Last Piece (at Least for Now) of Good News on the Modified Categorical Approach" »

Did You Know that "And" Really Means "Or"? (At Least Every Now and Then.)

BLOG BULLETS: Charges of alternative ways of committing a crime require proof of just one of the alternatives even when the charge is in the conjunctive, so a plea admits only one of the alternatives ...
Continue reading "Did You Know that "And" Really Means "Or"? (At Least Every Now and Then.)" »

They May Reverse the Ninth Again! (But This Time We Want It.)

BLOG BULLETS: Present Ninth Circuit law allows courts to apply the "modified categorical approach" not just to divisible statutes that define multiple crimes or ways of committing a crime, ...
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Intent to Defraud Is Misdefined in the Ninth Circuit Model Instructions

This week we have a guest post from Dan Broderick, the head of the Federal Public Defender office in Sacramento. Though Dan was briefly an AUSA in Los Angeles (back when I started at the Federal ...
Continue reading "Intent to Defraud Is Misdefined in the Ninth Circuit Model Instructions" »

Acceptance of Responsibility With a Trial: You Can Get It if You Really Want It.

BLOG BULLETS: Defendants can get credit for acceptance of responsibility even when they go to trial. Such credit is especially justifiable when the defense is an affirmative defense that admits the ...
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Objecting to a Conditional Plea to Prejudice the Jury: Prosecutorial Bad Form (and Even Bad Faith?)

BLOG BULLETS: Don't let prosecutors use their right to object to a conditional plea as a way of maintaining prejudicial joinder of a factually uncontested charge. Ninth Circuit severance case law ...
Continue reading "Objecting to a Conditional Plea to Prejudice the Jury: Prosecutorial Bad Form (and Even Bad Faith?)" »

They're Doing You a Favor by Agreeing to a Conditional Plea? Wait a Minute!

BLOG BULLETS: Government consent is required for a conditional guilty plea. But the purpose of that requirement is to let the government preserve harmless error arguments. The defendant is giving the ...
Continue reading "They're Doing You a Favor by Agreeing to a Conditional Plea? Wait a Minute!" »

Why Do We Sign Plea Agreements? Or Who Needs the Government Anyway?

BLOG BULLETS: Plea agreements may not provide enough benefits to offset the costs. Think about pleading open -- when you're client's ready -- and saving the right to appeal the sentence. ...
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You Can Make Them Fix That Breach! Really Fix It.

BLOG BULLETS: The government can't mouth its recommendation but then undercut it with other arguments. The remedy for government breach of a plea agreement, if the defendant wants it, is specific ...
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Did You Know This? The Drug Testing Error Rate Could Be One in a Hundred But the Chances of Your Client's Dirty Being a False Positive Could Be One in Two.

BLOG BULLETS: Low drug testing error rates don't necessarily mean most positive tests are accurate. There's a Ninth Circuit opinion, not just statisticians, explaining this. So think more ...
Continue reading "Did You Know This? The Drug Testing Error Rate Could Be One in a Hundred But the Chances of Your Client's Dirty Being a False Positive Could Be One in Two." »

Getting Even Braver in a Brave New World: Computer Searches Part 3

BLOG BULLETS: Use analogies to pre-computer Fourth Amendment case law for arguments on computer searches. There may be more than one analogy to consider. The analogies aren't always helpful, so ...
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Getting Braver in a Brave New World: Computer Searches Part 2

BLOG BULLETS Onsite computer searches aren’t necessarily as difficult as experts claim. Onsite computer searches are getting easier and some day in the not too distant future may be the norm. ...
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The Brave New Fourth Amendment World of Computer Searches

BLOG BULLETS: Computer searches are a brave new world where the courts and law enforcement are still trying to figure it out. The courts have given leeway for computer searches due to their ...
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Computer Discovery in Child Pornography Cases: You May Not Be Entitled to Everything, But You're Entitled to More Than They Usually Give

BLOG BULLETS Defense counsel and experts aren't entitled to a copy of the child pornorgraphy on a seized computer. Defense counsel and experts are entitled to a copy of everything else on a seized ...
Continue reading "Computer Discovery in Child Pornography Cases: You May Not Be Entitled to Everything, But You're Entitled to More Than They Usually Give" »

So You Think You Speak Spanish, Officer? Well, Give Us a Sample Then.

BLOG BULLETS: Little things in a translation can make a big difference. Translations by an intermediary agent are admissible non-hearsay only if the agent is sufficiently skilled in the foreign ...
Continue reading "So You Think You Speak Spanish, Officer? Well, Give Us a Sample Then." »

A Fourth Government Misunderstanding: About Its Brady Obligation Again

B LOG BULLETS: Brady applies to sentencing mitigation evidence, not just trial evidence. The government often forgets this, so remind them, and if they disagree, remind the court. And make them apply ...
Continue reading "A Fourth Government Misunderstanding: About Its Brady Obligation Again" »

Codifying the Brady Standard to Help the Prosecutors Understand

BLOG BULLET Think about legislative and rule proposals as well. NOW THE BLOG: Oh, the wonderful Internet and thank God the days of vellum, papyrus, and stone tablets are long gone. I went out to ...
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A Third Government Misunderstanding: About Its Basic Brady Obligation

BLOG BULLETS: Post-conviction appellate Brady standard "materiality" requirement is prejudice requirement that doesn’t apply pretrial. Pretrial Brady standard should be just any ...
Continue reading "A Third Government Misunderstanding: About Its Basic Brady Obligation" »
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Carl Gunn was an Assistant Federal Public Defender for over 28 years from 1983 through 2011, mostly in the Los Angeles office, but with additional three-year and four-month stints in Tacoma, Washington and Anchorage, Alaska, respectively. During much of his tenure, he supervised, trained, and/or mentored newer attorneys. He is now of counsel at Kaye, McLane, Bednarski & Litt, where he specializes in federal criminal appellate practice and motions and sentencing support. He has a reputation for raising issues that lead prosecutors to make comments such as the one discussed in the far left column of this blog. Those comments also reflect prosecutorial concern about the successful outcomes raising such issues can produce – whether it's getting an acquittal, getting charges dismissed, or getting a much lower sentence or favorable plea agreement. For more on Mr. Gunn and the other attorneys at Kaye, McLane, Bednarski & Litt, Click Here.

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