US Attorney General Eric Holder on Federal Drug Law Reform

US Attorney General Eric Holder wrote an editorial in the Washington Post on federal drug sentencing reform: “Time to Tackle Unfinished Business in Criminal Justice Reform”

Senators Re-introduce Bill Requiring Search Warrants for Emails

US Senators Orrin Hatch (R-UT), Christopher Coons (D-DE), and Dean Heller (R-NV) re-introduced on February 12, 2015 a bill proposing the Law Enforcement Access to Date Stored Abroad Act (“LEADS Act”), which would prevent law enforcement agents from accessing any data stored in the Cloud that is more than 180 days old without a search warrant.  The US Department of Justice (“DOJ”) interprets the now-in-effect Electronic Communications Privacy Act to require a law enforcement agent to obtain a search warrant only for unopened emails not more than 180 day old; all other information, including opened emails not more than 180 days old, and both opened and unopened emails more than 180 days old, only require a subpoena.  The LEADS Act also proposes to define the parameters by which law enforcement agents may access data stored outside of the United States.  Read The Hill‘s article here: “Republican Senator Pushes Bill to Require Warrants for Emails”

Federal Judge Back on Forensic Science Panel after DOJ Relents Earlier Position

The Honorable Jed Rakoff, and US District Court Judge in the Southern District of New York, resigned his position last Tuesday as the only member of the judiciary on the US Department of Justice‘s National Committee on Forensic Science, based on the DOJ’s refusal to discuss the committee’s recommendations about the extent to which the Government should disclose its scientific evidence to criminal defendants prior to trial.  Judge Rakoff agreed to re-join the committee just two days later, however, after the DOJ changed its position.  Newly-appointed Deputy Attorney General Sally Quillian Yates—in what appears to be her first public act of damage control—assured Judge Rakoff that those discussions were now back on the table.  Read the New York Law Journal‘s article here: “After Short Departure, Rakoff Rejoins DOJ Panel”

US Attorney General Eric Holder Announces Resignation

US Attorney General Eric Holder announced his resignation today after six years of leading the US Department of Justice under President Barack Obama.  Read the New York Times’ article here: “Eric Holder Resigns, Setting Up Fight for Successor”

DOJ Abandons Appeal Waivers Concerning Ineffective Assistance of Counsel in Plea Agreements

Federal prosecutors in many judicial districts lately have insisted on appeal waivers in plea agreements.  A typical waiver includes the defendant’s express agreement not to pursue any post-conviction challenge based on the ineffective assistance of counsel, even though every defendant’s right to the effective assistance of counsel is a cornerstone of the Sixth Amendment.  Nonetheless, the Department of Justice and the distict courts that have approved the waivers consistently have ignored the conflict of interest that is created when an attorney advises his or her client to waive any complaint about that attorney’s representation even before the representation is complete (most federal sentencing hearings are held months after the plea hearing at which the defendant agrees to the waiver), and the client has no legal training to know whether the representation was proper anyway.  Today, however, US Deputy Attorney General James Cole issued a memorandum to all federal prosecutors directing them not to seek these waivers in any future plea agreements and not to enforce them in any existing plea agreements if the defendant’s attorney was ineffective or “when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.” See DAG James Cole’s memorandum here: Department Policy of Waivers of Claims of Ineffective Assistance of Counsel