Federal Criminal Justice Clinic—Significant Achievements for 2017-18
Stash House Impact Litigation
From 2014 to the present, the Federal Criminal Justice Clinic (FCJC) created and spearheaded a complex, nationally-recognized, and ground-breaking litigation on behalf of 43 indigent criminal defendants in Chicago charged in twelve federal criminal “stash house” sting cases, which are currently pending before nine U.S. District Court judges.[1] The clinic filed and litigated Motions to Dismiss for Racially Selective Law Enforcement for all 43 clients, alleging that the ATF unconstitutionally discriminated on the basis of race in targeting people of color in these cases, in violation of the Equal Protection Clause. (Of the 94 people selected by the ATF to commit this offense from 2006–2013, 91.5% were Black or Hispanic.)
The FCJC approached the legal issue of selective law enforcement in an innovative fashion by coordinating across cases and bringing empirical evidence to bear. The clinic retained an expert witness who is one of the nation’s premier authorities on race discrimination in policing—Professor Jeffrey Fagan of Columbia Law School. Professor Fagan conducted a statistical analysis on behalf of all 43 clients which found that the ATF discriminated against people of color in our cases. (Motions and expert report available at this link.)
On December 14–15, 2017, all nine of the judges involved in these cases held a two-day joint evidentiary hearing on our Motions to Dismiss in the Ceremonial Courtroom of the federal courthouse. It was essentially an en banc evidentiary hearing in federal district court, an unprecedented occurrence. The Chicago Tribune published a front page story about the hearing, Was Racial Profiling Behind ATF Stash House Stings? Chicago Judges To Take Up Landmark Case Today (Dec. 13, 2017), and NPR’s Morning Edition did a national story about it, Court Decision Could Force Changes to ATF’s Undercover Operations (Dec. 15, 2017). FCJC students were integrally involved in preparing for the hearing, drafting direct and cross examinations, drafting closing argument, and mooting our expert witness. FCJC students also wrote numerous post-hearing motions and briefs.
Although Chief Judge Castillo “reluctantly denied” the FCJC’s Motion to Dismiss in his two stash house cases, his opinion speaks harshly about the stash house tactic: “Our criminal justice system should not tolerate false stash house cases in 2018.” United States v. Brown, 2018 WL 1278577, at *1 (N.D. Ill Mar. 12, 2018). In particular, he critiques the operation for primarily ensnaring people of color: “The inherent problems of this District’s false stash house cases must be seen through the lens of our country’s sad history of racism.” Id. at *2. Judge Castillo further notes that false stash house cases “generate great disrespect for law enforcement efforts,” id. at *1, and implores the government to “relegat[e]” them to “the dark corridors of our past,” Id.
When the FCJC began this litigation, our 43 clients were facing 15–25 year mandatory minimums and far higher sentences under the Sentencing Guidelines. In the wake of the hearing, the U.S. Attorney’s Office in Chicago made highly unusual plea offers in all of the cases, offering to dismiss all of the remaining mandatory minimum gun and drug charges. See Under Pressure By Judges, Prosecutors to Offer Plea Deals in Controversial Drug Stash House Cases (Feb. 21, 2018). In addition, the U.S. Attorney’s Office has entirely stopped bringing new stash house prosecutions. These remarkable results are attributable to the tremendous efforts of scores of students who worked on the stash house litigation.
The FCJC’s litigation is also changing the law elsewhere in the country and eroding the high standard for obtaining discovery regarding racially discriminatory practices set in United States v. Armstrong, 527 U.S. 456 (1996). In United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by the FCJC, the en banc Seventh Circuit relaxed the legal standard for defendants seeking discovery from law enforcement agencies as opposed to prosecutor’s offices, holding, “Unlike prosecutors[,] . . . [a]gents of the ATF and FBI are not protected by a powerful privilege or covered by a presumption of constitutional behavior.” Id. at 720. In the recent case of United States v. Washington, 869 F.3d 193 (3rd Cir. 2017), the Third Circuit dramatically extended its own law to follow Davis, further relaxing the discovery standard for defendants raising claims of racially selective law enforcement. Id. at 220.
United States v. Leslie Mayfield
Nearly a decade after being targeted by the ATF for a fictitious stash house sting, FCJC client Leslie Mayfield was sentenced to time served by U.S. District Court Judge Edmond Chang and was released from custody. Under the supervision of Associate Clinical Professor Erica Zunkel and Lecturer in Law James DuBray, FCJC students worked tirelessly to prepare an outstanding oral and written sentencing presentation for Leslie, focusing in particular on Leslie’s impressive post-offense rehabilitation and the questionable way in which he was targeted by the ATF. In spite of these mitigating circumstances, the government was asking for Leslie to serve another three years in prison.
Leslie fought long and hard for justice. He previously went to trial and received a 26-year sentence. The en banc Seventh Circuit reversed his conviction after concluding that the previous trial judge had erroneously precluded him from presenting a credible entrapment defense. Leslie’s case changed the law in a positive way for all criminal defendants. In the years since, Leslie has done everything in his power to change his life and the lives of those around him. While in prison, Leslie spearheaded a GED tutoring program that was directly responsible for over twenty inmates earning their GEDs while in custody.
During the sentencing hearing, Judge Chang raved about Leslie’s “enormous” post-offense rehabilitation, concluding that he poses a “minimal risk of reoffending.” Judge Chang also criticized the decision to prosecute Leslie at all, stating, “This prosecution was legal … but was it the right thing to do? I seriously question that.” The Chicago Tribune has been following Leslie’s case for years and also covered the sentencing, putting this case in the broader context of the stash house litigation. See Man to Go Free After Judge Sentences Him to Time Served in Stash House Sting Case (June 14, 2018).
Sentencing & Appeal
A team of FCJC students supervised by Associate Clinical Professor Erica Zunkel and Lecturer in Law James DuBray successfully persuaded a federal judge to impose probation instead of uprooting their client’s life and sentencing him to prison. This vigorously contested sentencing followed years of extensive pretrial litigation and the first trial in FCJC’s history. The government requested a prison sentence, which meant that the student team faced an uphill battle to avoid imprisonment for their client.
Luckily for the client, students sprang into action, drafting compelling and detailed sentencing filings on a number of disputed issues. The students deftly conveyed to the judge the client’s history—his successes, failings, and how he came to the point of being charged in federal court. This empathetic portrait allowed the judge to see the client as much more than his recent actions. The FCJC is now in the process of appealing the case to the Seventh Circuit to address constitutional issues with the charges, as well as pre-trial and trial errors.
FCJC’s Ten-Year Anniversary Celebration
Over the weekend of April 20-22, 2018, the FCJC held a ten-year anniversary celebration. Many FCJC alumni and students from 2008 to 2018 attended the anniversary events, which included a welcome reception hosted by Kirkland & Ellis LLP, a panel and reception hosted by Sidley Austin LLP, a dinner celebration, and a farewell brunch at Professor Siegler’s house.
During the Kirkland reception, Professor Siegler spoke about the ten-year history of the clinic and presented a slideshow highlighting the accomplishments of the FCJC and its alumni. The Sidley panel, Recent Developments in Federal Criminal Law, Procedure, and Policy, was moderated by Professor Zunkel and featured three FCJC alums. Adam Davidson (‘17), law clerk to U.S. District Judge James Gwin, provided an update on notable recent criminal cases from the Supreme Court. Amanda Penabad (‘12), a federal public defender in Chicago, provided the on-the-ground perspective on current criminal issues in the Northern District and Seventh Circuit. Annie Wagner (‘11), a federal public defender in Seattle, discussed recent criminal justice directives from the Department of Justice.
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[1] The “stash house” cases are unique, in that each case arises out of a proactive sting operation where the ATF targets individuals to rob a stash house that does not actually exist. The ATF encourages the person it targets to bring guns and recruit additional manpower. In fact, however, the stash house and the drugs are purely fictional. The United States Attorney’s Office ultimately charges the defendants with federal drug, gun, and robbery crimes, many of which carry draconian mandatory minimum penalties.