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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.

Recent Posts in Criminal Defense Category

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More on Fifth Amendment Rights from the News: On the Scope of the Privilege Against Self-Incrimination

BLOG BULLETS: Even an innocent person can claim the privilege against self-incrimination. The test is whether the answer to the question could provide a mere "link in the chain of evidence" ...
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More on Bad Wars Make Bad Law: Some Judicial Warnings

BLOG BULLETS: There are some opinions out there warning about expanding the "public safety" exception to Miranda too far. It’s an exception that should be narrowly construed and ...
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Bad Wars Make Bad Law: An Extension of the War on Terrorism and Its Creeping Infringement on Civil Liberties

BLOG BULLETS: There’s a narrow exception to Miranda called the "public safety" exception recognized in a Supreme Court case called New York v. Quarles. The exception applies when ...
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Some Good News on Crack, and a Call for the Government to Come Through on Its Rhetoric About Fairness and Injustice.

BLOG BULLETS: The Sixth Circuit just created a split in the circuits on the issue of whether the new crack mandatory minimums apply retroactively in sentence reduction proceedings under 18 U.S.C. ...
Continue reading "Some Good News on Crack, and a Call for the Government to Come Through on Its Rhetoric About Fairness and Injustice." »

If They're Giving Us the Report, Why Not Give Us the Notes?

BLOG BULLETS: Notes of a witness interview may be Jencks material, either as a statement of a witness if they’re a substantially verbatim recording or as a statement of the agent notetaker if he ...
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A DOJ Acknowledgment of Discovery in the Brave New World of Computers.

BLOG BULLETS: Don't forget e-mails and other electronic material in your discovery requests. DOJ has warned agents and prosecutors -- and may warn witnesses -- about such discovery. Let their ...
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Have You Thought About the Discovery that Word Processing Might Produce?

BLOG BULLETS: There may be prior, intermediate drafts of reports on a word processing system in addition to the original notes and the final report. Less "polished" drafts may have valuable ...
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Aren't Notes a Written Record Too?

BLOG BULLETS: Sometimes agent notes can be better than the agent's report. Rule 16 requires disclosure of "any written record" of a defendant's oral statements made in response to ...
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Interview Reports: The Difference Between Them and Us.

BLOG BULLETS: Preparation of reports by the government is different than preparation of reports by the defense, because the government has different obligations and interests. Different interests ...
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To Report or Not to Report, That Is the Question. (With Apologies to Shakespeare.)

BLOG BULLETS: You shouldn't necessarily have investigators automatically prepare reports. It's not just harmful evidence reports may create; they may create inaccurate evidence as well. Think ...
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The Timing of Reciprocal Jencks: What's Sauce for the Goose Is Sauce for the Gander, But the Gander's Not Entitled to Better Sauce.

BLOG BULLETS: The Jencks rule requiring disclosure of witness statements applies to the defense as well as the government. "Early Jencks" provided by the government is different than ...
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Back to the Brave New World of Computer Searches: A Good (or at Least Improved) New Ninth Circuit Decision.

BLOG BULLETS: A quick look and perusal of a computer at the border requires no suspicion, but an intensive forensic examination requires reasonable suspicion. The Ninth Circuit recognizes in its en ...
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Last Week's Post and Eyewitness Identification Expert Testimony

BLOG BULLETS: Court of appeals eyewitness identification expert opinions upholding the exclusion of such testimony merely allow exclusion; they don't require it. Recent cases suggest the wiser ...
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The Case Law They Cite Is About the Abuse of Discretion, Not the Exercise of Discretion.

BLOG BULLETS: A court of appeals opinion finding no abuse of discretion doesn’t mean the ruling being reviewed was the only permissible ruling, or even that it was the best ruling, so the ...
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I Told You So: The Double Jeopardy Bar to Government Appeal of a Midtrial Judgment of Acquittal Revisited

BLOG BULLETS: The Supreme Court just reaffirmed the double jeopardy bar to government appeals of a midtrial judgment of acquittal. The bar exists even if everyone agrees the bar was based on an ...
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The Constitution Is All Fine and Good, But Don't Forget the Rules of Evidence.

BLOG BULLETS: Federal evidentiary rules place additional limits on use of a defendant's silence, because, in the words of the Supreme Court, it's "inherently ambiguous." There's ...
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They Can't Use Your Silence Against You Here. But They Can There. And There. So What About This Other Place?

BLOG BULLETS: Post-Miranda silence can't be used to impeach a defendant who testifies at trial. But pre-Miranda silence, whether before or after arrest, can be used to impeach a defendant who ...
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How to Determine Whether to Challenge Minimization in a Wiretap Case

Today we have another post from Dan Broderick, our former Sacramento FPD, following up on his post last week about minimization. This one's about how to actually mount a challenge. BLOG BULLETS: ...
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Is the Government Actually Minimizing Wiretapped Calls?

Today, we have another guest post from Dan Broderick, who did a couple of guest posts for us back in October. Dan was then the Federal Public Defender in Sacramento, but he retired at the end of last ...
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Hope Springs Eternal in the Heart of an Ex-Public Defender

BLOG BULLETS: Ten years ago, the Supreme Court held mandatory minimums aren't subject to Apprendi. Justice Breyer recognized at the time that made no sense; he's signaled he might change ...
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Applying Old Word Principles in the Brave New World of Computer Searches

BLOG BULLETS: Does and/or should a search warrant for premises based on probable cause to think one occupant or resident is involved in criminal activity allow the search of an uninvolved ...
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Another Visit to the Brave New World of Computer Searches

BLOG BULLETS: A recent case illustrates the potential for challenging computer searches not just through facial challenges to the warrant but in the way the search was conducted. Agents conducting a ...
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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 ...
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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 ...
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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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