Federal Prison Blog

Criminal defense lawyers are seldom satisfied. Perhaps it’s the law or the rules that govern the work we do, which are not generally defendant-friendly. Or perhaps it’s our natures, to be always seeking more for those we represent. Regardless, one thing about which most federal practitioners in the District of Connecticut can agree is the quality of the bench in front of which we appear. Informed by colleagues from other parts of the country, Connecticut’s defense attorneys share an open, though closely held secret: our judges are among the best in the nation, and our District is one of the most pleasant in which to work.

It is against this backdrop that word came just before Christmas that Assistant Federal Public Defender (AFPD) Sarah Merriam has been appointed our newest Magistrate Judge, replacing the soon-to-retire, well respected Honorable Holly Fitzsimmons. Sarah is a known quantity in many Connecticut legal circles. She clerked both for our former Chief Judge and for a Circuit Judge; she was an associate at a highly regarded criminal defense firm; she was the campaign manager in a successful bid for a Congressional seat; she is active in the CBA’s Federal Practice Section; and she is a member of the Federal Grievance Committee. However, it has been in her role as an AFPD the past seven years that Sarah has arguably had the greatest impact, not only on her office and on behalf of the indigent clients she serves but also on the defense community as a whole.

You see, Sarah is the person everyone turns to with questions. A Yale Law School graduate, Sarah is the proverbial smartest person in the room, though you wouldn’t necessarily know it from speaking with her because she does not put on airs. What you know is that if you call or e-mail Sarah with a question, no matter how difficult or banal, she will get back to you shortly, with a concise, correct answer.

Following news of Attorney General Eric Holder’s intention “to leave the Justice Department as soon as his successor is confirmed” comes a story today from Joe Palazzolo at the Wall Street Journal that next week the Attorney General will announce a significant shift in DOJ policy: “federal prosecutors no longer will ask criminal defendants who plead guilty to waive their right to appeal over bad legal advice.” I wrote about these untenable waivers several years ago:

[…]waiving the right to challenge constitutional and other legal errors concerning the process by which a conviction is obtained is another matter entirely, and thus a cause for concern as it pertains to the appeal and postconviction waiver language that federal prosecutors routinely insert into plea agreements consistent with the U.S. Attorney’s Manual. (See 9 USAM: Criminal Resource Manual 626.) These provisions look to leave defendants with no meaningful chance at postconviction relief regardless of whatever meritorious issue may later present.[…]

An equally obvious problem is that these waivers work to insulate the plea and government and defense counsel’s respective actions from any review. Importantly, ethics bodies in five of six jurisdictions, which have considered the question, have issued opinions excluding ineffective assistance of counsel claims from the scope of permissible postconviction waivers.

Our firm has handled a number of child pornography cases, especially within the past few years as the FBI and the U.S. Attorney’s Office for the District of Connecticut have made these cases a high priority.  In every one of these cases, the U.S. Attorney’s Office has a standard practice of sending out notices to the victims who have been identified as being in the pictures and videos possessed by the defendant.  This can result in the victim filing a claim for full restitution from the defendant – sometimes seeking hundreds of thousands of dollars.   One of the challenges of these cases is that the victim frequently argues that the defendant must pay the full amount of the losses, even where the evidence shows that the defendant did not know or have any direct contact with the victim, and even where the defendant may have been only one of thousands of anonymous possessors of the images available for download from the Internet.

In Paroline v. United States, No. 12-8561, the U.S. Supreme Court finally addressed the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim in this type of a situation.  In a 5-4 decision, the Court rejected the victim’s claim that each defendant is responsible for all of the victim’s claimed losses.  Instead, in the majority opinion written by Justice Kennedy, the Court held that the sentencing court must engage in a flexible, apportionment-type analysis:

Where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses….The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child pornography crimes, even simple possession, affect real victims.