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10th Cir - Must consider circumstances of the offense

10th Circuit says must consider circumstances of offense

An unpublished sentencing opinion from the Tenth Circuit in US v. Mahan, No. 05-1518 (10th Cir. May 16, 2007)
which reverses a within guideline sentence because it was procedurally unreasonable.

Here is the heart of a significant (even though unpublished) ruling:

District courts must consider the 18 U.S.C. § 3553(a) factors in applying a sentence that is "sufficient, but not greater than necessary" to fulfill the aims of those factors. Among other factors, § 3553(a)(1) requires the court to consider "the nature and circumstances of the offense" when developing an appropriate sentence. Following Mr. Mahan's description of how and why he came to possess the gun, the district court said "the reasons why you had the weapon ... aren't something the Court can consider," because possession of a firearm by a felon is a strict liability offense. The district court further labeled as "extraneous factors" Mr. Mahan's reasons for possessing the gun and acknowledged such information would have no bearing on its determination of Mr. Mahan's sentence.

The district court was correct that mens rea is not relevant in determining if an individual is guilty of a strict liability crime. However, in determining the appropriate sentence for one guilty of such a crime, the court must consider the factors set forth in § 3553(a), including the nature and circumstances of the offense. We find nothing in § 3553(a) to suggest that the "circumstances of the offense" factor exclusively applies to crimes requiring a mens rea or that this factor is to be specially excluded when arriving at a sentence for a strict liability crime. In fact, we have previously stated that the district court is required to consider all § 3553(a) factors when sentencing an individual for the same strict liability crime presented in this case.

Check out the Governing Through Crime Blog

Jonathan Simon has written some ingenious ideas at his Governing Through Crime blog, he asks this:

Does America accept the moral necessity of a war on crime despite its clear tendency to reinforce almost every aspect of racialized disadvantage and disparity, or is that war on crime a barely disguised strategy to maintain a system of unequal citizenship on the basis of race?

And ends with this:

. . . Thus the hidden danger in all the talk around re-entry about risk assessment and rehabilitation is to deepen the assumption that social pathology must be treated as crime in ways that will structurally disadvantage communities of color.

Taint of Faulty Expert Chemist Testimony Results in Dismissal

On May 11, 2007, Judge Twyla Mason Gray in Oklahoma County District Court dismissed a 22-year-old murder charge against Curtis Edward McCarty ruling the case could not escape the taint of former police chemist Joyce Gilchrist. Gilchrist was a chemist for the Oklahoma City police department who was filed on Sept. 25, 2001, after 21 years as a police department chemist. She had been investigated by the FBI, and investigations were launched into more than 1,400 of the cases assigned to her.

Oklahoma County DA David Prater said his office will not appeal the decision.

Curtis Edward McCarty, 42, who was twice convicted of the 1982 murder of 18-year-old Pamela Kaye Willis and sentenced to die three times, was released on May 11, 2007.

Actual Innocence Data Base - Legal Research on the Web

The Actual Innocence Data Base - Free Online Legal Research

The law library at UT has compiled an Actual Innocence database,containing citations (and links) to current articles, scholarship andother materials regarding wrongful convictions.The materials are classified into what are considered the primarycauses of wrongful conviction:Forensics/DNA;Eyewitness identification;False confessions;Jailhouse informants;Police and/or prosecutorial misconduct; andIneffective representation.

Winning Defense Themes - Prepare the End Game First

Winning Defense Themes - Prepare the End Game First

The general idea for this comes from the NACDL seminar materials.From: "What it Takes to Win Your Case" - "Themes, Theories, andFacts Beyond Change" by Richard Tegtmeier, Colorado Springs, CO, presented Nov. 2002, in Chicago, IL.

It suggests the idea of preparing for a trial by: If you know where you are wanting to go or the final destination, then you can determine what you need to do to get there or what route to take.

Where do you want to go?

If you know what you want to say in the closing argument, then you will know what you have to prove to get there.

1. First look at the jury instructions that you want the jury to be given for your client's theory of the defense. Don't try to force a defense into the trial if it doesn't ring "true." Be consistent. If your client ran a red light which resulted in a death but was not intoxicated, admit your client ran a red light which resulted in death but that he was not intoxicated. Be consistent. (Manslaughter -felony vs. Negligent Homocide - misdemeanor)

2. Argue a powerful defense and not a negative defense. Don't argue --- the state failed to prove it's case---- which implies --- my client is guilty but let him off because the state failed to prove the case ---Instead argue that the client lacks the intent or that they have the wrong man or that he is innocent or innocent of the charged offense. However, what-ever the defense has to ring true to the jury and be consistent with the facts. When you look at the facts use your own intuition and your emotions. Most juries react emotionally to the facts. You must anticipate their emotions. Use your intuition and your emotions. You may want the jurors to "associate" with the emotions of your client. Success with a jury can be related to how well the jury relates to the client's reactions, decisions, and feelings in the case.

3. Next go to closing argument. Ask yourself what you want to be able to tell the jury when you stand to give them the reasons for finding your client not guilty. Give a synopsis of your closing to non-lawyers and ask them their opinion. What they think of your theory and why people would react the way your client reacted. When you run these questions by ordinary people, you will see the natural reactions of people to life circumstances and their gut-level reaction to the case will give you insight that is GENUINE,CLEAR, AND HONEST.

If you know what you want to say in the closing then you will know what you have to prove to get there. There are certain "facts beyond change" or core facts that cannot bechanged in any case. Your theory of defense must be consistent with these "core facts."

Jurors decide cases based upon emotions or their gut-level instincts. Every case has a "dominant" emotion. Determine what that dominant emotion may be or could be. If the theory is self defense --- ask questions during jury selection relating to that dominant emotion --- Tell your investigator what your theory of the defense is and what you expect to argue during closing argument and what jury instructions you anticipate so that the investigator can find facts in support of the theory of defense.

We live in a world of 15 second sound bites and themes and the jury expects them. Decide what your theory of defense will be and design some short sound bites and themes for the jury. Be consistent with the core facts and the emotions. Most juries decide the cases primarily based on instinct and emotions. The law and the facts are secondary. Tell the jury your defense theme and defense sound bites just like you would talk to a friend. Be human.

Your client is a human being. You are his or her primary mouth piece. Your client's freedom, future, and life --- depends upon you and you must be able to articulate your client's story and explain the life circumstances in detail of your client. Your client is a human being and not a monster and sometimes you may have to say to the jury ---- my client is a human being and not a monster.

Bureau of Justice Statistics Report - minorities more likely to be searched-arrested

Bureau of Justice Report - Minorities more likely to be searched and arrested

Read the Actual Bureau of Justice Report April 30, 2007


Black, Hispanic and white drivers are equally likely to be pulledover by police, but African Americans and Hispanics are much morelikely to be searched and arrested, a federal study found.And police are much more likely to use force against or to threatento use force against African Americans and Hispanics than againstwhites, whether in a traffic stop or another encounter, according tothe Justice Department

The study, released yesterday by the department's Bureau of JusticeStatistics, covered police contacts with the public during 2005 andwas based on interviews by the Census Bureau with nearly 64,000people age 16 or over."

The numbers are very consistent" with those found in a similarstudy of police-public contacts in 2002, said bureau statisticianMatthew R. Durose, a co-author of the report.

Traffic stops are the most frequent way police interact with thepublic, and minority groups have said that many stops and searchesare based on race. Some African Americans allege being pulled overfor "driving while black.""The available data is sketchy but deeply concerning," said HilaryO. Shelton, director of the NAACP's Washington bureau.

The NAACP hasdone surveys on traffic stops, and he said the racial disparitiesgrow larger as the studies delve deeper."It's very important to look at the hit rates for searches -- thenumber that actually result in finding a crime," Sheltonsaid. "There's a great deal of racial disparity there.""This report shows there are still disturbing disparities in termsof what happens to people of color after the stop," said Dennis D.Parker, director of the American Civil Liberties Union's racialjustice project. He also said better reporting is needed.This report, like the one for 2002, warns that the racialdisparities uncovered "do not constitute proof that police treatpeople differently along demographic lines."

The differences couldbe explained by circumstances not analyzed by the survey.Black, Hispanic and white motorists were equally likely to be pulledover by police -- between 8 percent and 9 percent of each group.The racial disparities showed up after that point:African Americans (9.5 percent) and Hispanics (8.8 percent) weremuch more likely to be searched than whites (3.6 percent).African Americans (4.5 percent) were more than twice as likely aswhites (2.1 percent) to be arrested. Hispanic drivers were arrested3.1 percent of the time.Among all police-public contacts, force was used 1.6 percent of thetime. But officers were more likely to use force against or tothreaten to use force against African Americans (4.4 percent) andHispanics (2.3 percent) than against whites (1.2 percent).

Drug Treatment Facilities in Oklahoma

Long-term inpatient drug treatment facilities you can look up all Oklahoma facilities here: