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Prisoner Education Guide

Articles by Christopher Zoukis

$400,000 Settlement Accepted by Michigan Parolee Over Force by Police, Parole Officers

by Christopher Zoukis

Michael J. Trethewey, who was assaulted by police and parole officers for an alleged parole violation, accepted a $400,000 settlement in compensation for his medical expenses and injuries. Approximately $270,000 of that was allotted for attorney's fees.

     Trethewey, who had been released from ...

$224,528 Awarded to County Jail Employee in New York Retaliation Suit

by Christopher Zoukis

A federal jury awarded Mark Battistoni, an employee at the Dutchess County, New York, jail, $224,528 after it found that his employer unlawfully retaliated against him.

     In July 2007, Battistoni received reports that the wife of his supervisor, Gary Christensen, was engaging in sexual conduct ...

10th Circuit: Observation of Stack of 15 Credit Cards Does Not Provide Police With Probable Cause to Examine Name on Cards for Evidence of a Crime

by Christopher Zoukis

The United States Court of Appeals for the Tenth Circuit reversed a lower court’s decision to deny a motion to suppress because the search that led to the discovery of illegal materials lacked probable cause. The December 28, 2017, opinion sent the case back to the district court with instructions to grant the motion to suppress.

On August 15, 2015, Sergeant Christopher Eastwood of the Oklahoma City Police Department was dispatched to investigate a tip that someone was smoking marijuana in a black Honda with Texas tags parked in an Arby’s parking lot. When Eastwood arrived on the scene, he located the vehicle. When he tapped on the window and the driver opened the car door, Eastwood smelled the distinct odor of burnt marijuana.

Eastwood asked the driver of the vehicle, Walter Earl Saulsberry, for his license and insurance information. Saulsberry did not provide this documentation but did provide his name. Eastwood called for assistance, and when backup arrived, he asked Saulsberry for permission to search the car. Saulsberry gave permission to search for marijuana, and Eastwood promptly found a joint. Saulsberry was arrested.

Eastwood then searched the car again. Inside a bag, he saw a stack ...

Ninth Circuit Reverses Conviction for Transporting an Illegal Alien Due to Improper Jury Instruction

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit reversed a defendant’s conviction for transporting an illegal alien for financial gain because the district court improperly instructed the jury on the mens rea element of the crime. The January 30, 2018, opinion sent the case back to the district court for retrial.

Lidia Rodriguez, a U.S. citizen, was arrested at the Arizona/Mexico border crossing after U.S. Border Patrol agents determined that her passenger, Enrique Martinez-Arguelles, was an illegal alien in possession of a fraudulent border-crossing card.

Investigators believed that Rodriguez was paid to smuggle Martinez-Arguelles into the country, so they charged her with violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (B)(i).

The crime Rodriguez was charged with imposes criminal liability on “[a]ny person who . . . knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law,” and provides for increased penalties if ...

California Court of Appeal Rejects Gang Enhancement Based on Expert Witness’ Case-Specific Hearsay Evidence

by Christopher Zoukis

The Court of Appeal of California, Fourth Appellate District, Division Two reversed a trial court’s imposition of a gang enhancement on a defendant when the evidence of gang activity consisted almost entirely of hearsay relied upon by an expert witness. The January 23, 2018, opinion affirmed the defendant’s underlying convictions but vacated the gang enhancement sentence.

On February 3, 2016, Hector Martinez and Jorge Gonzalez were approached by Ontario, California, police officer Devey as they walked away from what turned out to be a stolen truck. Martinez was charged with theft of a vehicle over $950 and possession of burglary tools. A jury convicted him and determined that the vehicle theft was committed in association with criminal gang activity. As such, Martinez was sentenced to eight years in prison based on a gang enhancement under Pen. Code § 186.22.

Martinez appealed, arguing that the gang enhancement should be reversed due to the gang expert’s reliance on “testimonial” “case-specific” hearsay at trial. The People conceded that the expert’s testimony included inadmissible hearsay but argued that any such errors were harmless.

Hearsay is an out-of-court statement used to prove the truth of the matter asserted and is generally ...

New Mexico Supreme Court Reverses Convictions Based on Double Jeopardy Violations

by Christopher Zoukis

The Supreme Court of New Mexico reversed a defendant’s convictions for shooting at a dwelling resulting in death or great bodily harm and conspiracy to shoot at a dwelling based on a violation of the Double Jeopardy Clause contained in the Fifth Amendment to the U.S. Constitution.

The case was remanded for resentencing, but other, more serious convictions were upheld by the Court in the February 8, 2018, opinion.

Noe Torres was convicted of being involved in a conspiracy to murder 17-year-old Ruben Perez. In the early hours of September 15, 2005, the conspirators fired nine shots through Perez’s bedroom window. Perez was not hit, but his 10-year-old brother Carlos was shot and killed.

Six years after the crime, Torres was arrested in Mexico and extradited to New Mexico to stand trial on multiple charges. A jury found him guilty of: shooting at a dwelling resulting in death or great bodily harm to Carlos, first-degree murder of Carlos, attempted first-degree murder of Ruben, conspiracy to commit first-degree murder, conspiracy to shoot at a dwelling, transportation of a firearm by a felon, and witness intimidation. Torres was sentenced to life imprisonment plus 31½ years.

On appeal, Torres ...

Ninth Circuit: California Carjacking Not a Crime of Violence Post-Johnson

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit ruled on January 29, 2018, that California’s carjacking law, Penal Code § 215(a), no longer constitutes a crime of violence under 8 U.S.C. § 1101(a)(43)(F) in light of the U.S. Supreme Court’s decision in Johnson v. United States, 559 U.S. 133 (2010).

In 1995, Roberto Solorio-Ruiz, a Mexican national, was convicted of carjacking and evading a police officer in violation of California law. He was sentenced to 21 years and four months in state prison. Thereafter, the United States sought to remove Solorio-Ruiz from the country, claiming that carjacking is a “crime of violence” and a “theft offense.” The government argued this aggravated felony subjected Solorio-Ruiz to removal under 8 U.S.C. § 1227(a)(2)(A)(iii).

An immigration judge agreed that carjacking amounted to an aggravated felony and that Solorio-Ruiz was thus deportable. The Board of Immigration Appeals (“BIA”) affirmed that carjacking was a crime of violence, but made no ruling as to whether it was a theft offense. Solorio-Ruiz appealed to the Ninth Circuit, and the Court reversed the BIA ruling.

Solorio-Ruiz argued that ...

Execution Numbers Down in 2017

by Christopher Zoukis

The number of death row sentences handed out across the country is in decline. Despite this trend, death rows remain crowded. This is the result of a similar, but somewhat unrelated shift: Executions are also in a state of free fall. In fact, there were fewer executions in 2017 than in 23 of the last 25 years.

Professor Lee Kovarsky of the University of Maryland School of Law referred to execution activity as “fall[ing] off a cliff.” According to Kovarsky, there were 23 executions in 2017, compared to 98 in 1999. These numbers represent the dawn of a new era in state-sanctioned murder. Between 1999 and 2001, 83 individuals were put to death in American jurisdictions. Between 2015 and 2017, there were 24 executions.

Kovarsky offers three reasons why executions are in decline. First, judges are finally coming around to “[the] science about wrongful convictions.” The use of DNA analysis in post-conviction proceedings is now standard practice, though prosecutors still tend to fight the use of scientific tools that help ensure the right person is convicted.

Second, it is becoming more difficult for states to perform executions in a constitutionally acceptable manner. Drug ...

Minnesota Supreme Court: Prisoner Entitled to Appointed Attorney for One Review of Conviction, Even When It’s Not a Direct Appeal

by Christopher Zoukis

The Supreme Court of Minnesota ruled that a convicted defendant is entitled to appointed counsel, pursuant to statute, for one review of his or her conviction—even if that review is on a petition for postconviction relief, as opposed to a direct appeal. The Court’s January 24, 2018 opinion clarified Minn. Stat. § 590.05 (2016), which provides that a convicted defendant is entitled to representation by a public defender “if the person has not already had a direct appeal of the conviction.”

In 2012, Jamil Joshua Eason was convicted of first-degree felony murder. He was sentenced to life in prison with the possibility of release after 30 years. Soon after his conviction, Eason filed a notice of appeal, supported by a 24-page brief drafted by his public defender. Prior to the date that the State’s responsive brief was due, Eason voluntarily dismissed his appeal. Nothing in the record indicated why he did this.

Almost two years later, Eason filed a pro se petition for postconviction relief. He requested that counsel be appointed pursuant to § 590.05. Because Easton had fired his public defender during his aborted direct appeal, the state public defender’s office declined to ...

Sixth Circuit: Statute of Limitations for § 1983 Claim Accrues When Criminal Proceedings are Terminated

by Christopher Zoukis

The United States Court of Appeals for the Sixth Circuit ruled on March 15, 2018, that a claim for prosecutorial misconduct, brought by a wrongfully convicted defendant, does not accrue for statute of limitations purposes when the conviction is vacated, but when the criminal proceedings are terminated.

Douglas Jordan was tried and convicted in Tennessee for the 1998 murder of Jennifer Byerley. His direct appeal was denied by the Tennessee Court of Criminal Appeals. When Jordan became aware that certain evidence —specifically a knife found near Byerley’s body that might have implicated someone else in the crime — was withheld by prosecutors, he filed a motion for post-conviction relief. This time, the Tennessee appeals court granted his motion and, in 2011, vacated his conviction. The court did not order his release, however, and the state chose to retry Jordan. He was acquitted in 2015.

Within one year of his acquittal, Jordan filed a 42 U.S.C. § 1983 claim against a Blount County prosecutor, detective, and the county itself. He claimed prosecutorial misconduct due to a blatant Brady violation. Brady v. Maryland, 373 U.S. 83 (1963), requires that prosecutors disclose exculpatory evidence to the defense ...


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