October, 2015 | McLane Bednarski & Litt, LLP

27 Oct

Reaffirmation and Clarification of the Categorical and Modified Categorical Approaches

October 27, 2015

BLOG BULLETS: A recent Ninth Circuit case – Chavez-Solis v. Lynch – clarifies and reaffirms two important principles about the categorical approach to evaluating prior convictions used for enhancements. First, a defendant does not always have to point to an actual case to show the required “reasonable probability” of an overbroad application of the statute; […]

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13 Oct

Waking Up to Reality and Coming Back Down to Earth.

October 13, 2015

By Carl GunnPress

BLOG BULLETS: A more limited bill including just a few of the ameliorative provisions of the SAFE Act I blogged about a couple of months ago has been introduced in Congress. The bill would (1) narrow the category of drug priors that can support enhanced mandatory minimums but add violent crime priors; (2) relax the criminal […]

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6 Oct

Sometimes Even the Judicial Committees Are Wrong.

October 6, 2015

By Carl GunnPress

BLOG BULLETS: Ninth Circuit model instructions, in the Ninth Circuit’s own words, “do not come down from any mountain or rise from the sea.” Consistent with this, Ninth Circuit panels have invalidated a number of Ninth Circuit model instructions. So don’t just accept an instruction because it’s the Ninth Circuit model instruction; look at it […]

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About the Blog

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.

Month: October 2015

Reaffirmation and Clarification of the Categorical and Modified Categorical Approaches

Waking Up to Reality and Coming Back Down to Earth.

Sometimes Even the Judicial Committees Are Wrong.

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