In a good decision on conditions of supervised release, Judge Kleinfeld reaffirms the frequently-invoked liberty interest of having a beer in your recliner while watching a ball game. United States v. Brandon Betts, __ F.3d __, 2007 WL 4355365 (9th Cir. Dec. 14, 2007), decision available here.
Players: Nice victory by CD Cal AFPD James Locklin.
Facts: Betts worked at a credit reporting company, and pleaded guilty to taking bribes to fix creditors’s bad credit. 2007 WL 4355365, *1. As is true in all FPD cases, “[o]n the advice of counsel, Betts declined to discuss his past or current use of illicit substances of alcohol.” Id. at *4. Although there was nothing in the record to suggest alcohol abuse, the judge imposed the condition of supervised release that “the defendant shall abstain from using illicit drugs or alcohol and abusing prescription medications during the term of supervised release.” Id. at *4.
Issue(s): “Betts contends that the condition prohibiting him from drinking alcohol fails the test set out in Weber.” Id. at *5.
Held: “We agree. No one suggests that alcohol played any role in Betts’s crime. And there was no evidence that Betts had any past problems with alcohol. Under these circumstances, we think it impossible to say that the condition imposed bears a reasonable relationship to rehabilitating the offender, protecting the public, or providing adequate deterrence.” Id. at *5.
Of Note: On Liberty: “Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech, but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion.” Id. at *6.
How to Use: Like any good AFPD, James Locklin advised his client to refuse to answer questions about prior drug or substance abuse (always a good idea, unless shooting for RDAP or using addiction as a mitigation fact). Judge Kleinfeld’s discussion of this policy – and the sentencing judge’s reaction – is interesting, though a little nerve-wracking: “ The court explains that it took away this liberty to change federal defender office policy by imposing the burden on defendants to answer probation officers' questions about drugs and alcohol. We need not reach any constitutional question that might arise under the Fifth Amendment, because the parties have not raised such a question and the statute does not support the burden to volunteer information that the court imposed. We do not understand how a federal defender's office or private law firm could, consistent with a lawyer’s ethical duties, adopt a policy sacrificing a client’s interest to the interests of criminal defendants as a class, but this is also a question we need not reach.” Id. at *7 (emphasis added). The holding of Betts helps protect the ability of defense counsel to hold Probation Officers at bay as they interrogate our clients – though Kleinfeld, at least, doesn’t seem particularly sympathetic to our policy.For Further Reading: Betts isn’t the toughest example of the ethical problems arising from blanket FPD policies. After all, if we allowed all clients who don’t have drug or alcohol problems to talk about that fact, it would be a huge red flag for those clients who we advise to stay mum. Other blanket policies, however, present tougher ethical dilemmas. Resistence to polygraphs, a blanket refusal to sign Brady waivers – as a class, these collective actions helps all clients. The problem is that, unlike a labor union, a Defender’s office can’t sacrifice the interests of an individual client for the good of the whole. For an interesting discussion about the defender blanket policies, see Vermont v. Velez, 175 Vt. 23 (Vermont S. Ct. 2003). In Velez, public defenders followed an on-point ethical opinion from the Vermont Bar Association and refused to take calls from DUI suspects unless the cop agreed to disclose the suspect’s priors. (The impact of the priors made a difference on the advice given to the client). 175 Vt. at 28. The state Supreme Court disagreed with this policy, and chewed out the P.D. for its actions. Id. at 29.
Can’t win for losing.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org