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Prisoner Education Guide

Articles by Christopher Zoukis

$175,000 Settlement Reached in Lawsuit Alleging Officers Literally Tried to Feed Graffiti Suspects to K-9s

by Christopher Zoukis

A lawsuit filed over a K-9 cop attack on two street artists who were spray-painting train cars in Broward County, Florida, has settled for $175,000. The men, Humberto Pellegrino and Pedro Claveria, alleged that Broward County Sheriff’s officers Davis Acevedo and Gerald Wengert literally tried to ...

New Jersey Supreme Court Interprets Criminal Harassment Statute to Avoid First Amendment Problem

by Christopher Zoukis

In a case involving a dispute between two prison guards, the Supreme Court of New Jersey clarified the kind of conduct necessary to expose an individual to criminal liability for verbally harassing someone else in the state.

William Burkert and Gerald Halton, both prison guards and members of competing unions, became involved in a war of insults during contract negotiations. Burkert was a sergeant and the vice president of the Fraternal Order of Police, while Halton was a prison guard and the treasurer of the Policemen’s Benevolent Association.

Halton’s wife posted comments online in which she referred to Burkert as “fat,” and described one of his brothers as “quirky” and “kind of retarded.” Burkert retaliated by distributing flyers with pictures from the Haltons’ wedding over which he superimposed some highly inflammatory comments about the small size of Halton’s genitalia, as compared to the prisoners he supervised. Halton was so humiliated by the flyers, which were seen by multiple co-workers, that he went home and never returned to work.

In an illustration of the Alice in Wonderland nature of municipal law in New Jersey, Halton himself was able to charge Burkert with violation of New Jersey ...

Eighth Circuit: Teague Analysis Bars Retroactive Application of Padilla Ineffective Assistance of Counsel Claim

by Christopher Zoukis

The United States Court of Appeals for the Eighth Circuit ruled that Teague v. Lane, 489 U.S. 288 (1989), which bars retroactive application of new rules of criminal procedure on collateral review, applies to claims brought pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), which ruled that criminal defense attorneys are ineffective when they fail to inform clients about the possible immigration consequences of pleading guilty. In practice, this means that criminal defendants in the Eighth Circuit may not collaterally attack a federal conviction on the basis of Padilla if they were convicted prior to the decision.

Roberto Barajas was convicted of knowingly possessing a stolen firearm in 2009, and after serving four months in prison, was deported. At the time of his conviction and sentence, it was an open question whether an attorney’s failure to advise a client of collateral consequences such as deportation could constitute ineffective assistance of counsel because Padilla had not yet been decided. After Padilla was issued, Barajas filed a petition for relief pursuant to 28 U.S.C. § 2255, in which he argued that his attorney provided ineffective assistance of counsel “by failing to inform him of ...

NYU Students Form Dollar Bail Brigade to Help Free New Yorkers Held on $1 Bail

by Christopher Zoukis

Judges in New York City courtrooms have an unusual option when it comes to the pre-trial release of a defendant charged with a minor crime: $1 bail. Hundreds of people accused of crimes such as theft of services, marijuana possession, and other minor offenses are required to pay one dollar to be released from jail on bail.

But as Mary Akdemir, a writer for the Student Nation section of The Nation discovered, it’s not the dollar that is the problem. The dilemma associated with dollar bail is the process of successfully navigating the byzantine bureaucratic processes necessary to actually pay the dollar. According to Akdemir, “once someone is in jail, the process of bailing them out is extremely difficult, involving time-consuming travel, capricious security checks, and complicated paperwork.”

The difficulty of dealing with the administrative hurdles associated with one-dollar bail routinely results in the presumed innocent languishing in jail for days or even months. Akdemir notes that extended jail stays like these risk people’s jobs, homes, and sometimes, even their health. In one case, a one dollar-bail prevented a mother from attending her child’s funeral.

When New York University student Amanda Lawson learned of the existence ...

Massachusetts High Court Vacates Felony-Murder Conviction for Failure to Suppress Cellphone Search

by Christopher Zoukis

The Supreme Judicial Court of Massachusetts reversed a felony-murder conviction and sent the case back for a new trial because the trial court failed to suppress evidence obtained from an illegal search of the defendant’s cellphone.

The November 21, 2017, opinion overturned the conviction of Aaron Morin for the felony-murder of Chad Fleming in November 2009. Morin and his co-defendant Nelson Melo allegedly conspired to rob Fleming, a supplier of Percocet pills. During the robbery, which was not intended to include a murder, Morin fought back and was beaten and strangled to death.

At trial, the prosecution presented three theories of guilt: premeditated murder, extreme atrocity or cruelty murder, and felony-murder, with the unarmed robbery as the predicate felony. The jury convicted Morin of felony murder. Morin moved for a new trial and was denied. His direct appeal and his motion for a new trial were consolidated for review by the Supreme Court.

Morin initially argued that the evidence did not support his conviction because he wasn’t there when Fleming was murdered and that there had been no plan to kill him.

In rejecting this argument, the Court pointed out that a felony-murder conviction requires neither of ...

Utah Supreme Court Changes Course on Admissibility of Preliminary Hearing Testimony at Trial

by Christopher Zoukis

In a significant decision regarding Rule 804 of the Utah Rules of Evidence, the Utah Supreme Court reversed itself in a case involving the use of hearsay testimony from a preliminary hearing at trial in a criminal prosecution.

The September 6, 2017 opinion considered the criminal case brought against DeSean Goins for two instances of assault. In July 2012, Goins confronted Gabriel Estrada, who he believed had stolen his phone. When Goins brandished a knife, Estrada fled. But Goins wasn’t done looking for his phone.

Later that day, Goins confronted Jacob Omar, a friend of Estrada’s. A fracas ensued, and Goins bit Omar’s earlobe off. He also stabbed Omar in the arm. Goins was arrested and charged with mayhem and two counts of aggravated assault.

At the preliminary hearing, both Estrada and Omar testified. Goins’ lawyer cross-examined Estrada. About two months later, the trial commenced, but the prosecution announced that Estrada had not appeared for the trial and moved that he be declared unavailable, and that his preliminary testimony be admitted and read to the jury.

The prosecution detailed for the court various steps it took in attempting to procure his appearance at trial. Nevertheless, Goins argued ...

Seventh Circuit Finds Plain Error Where Guilty Plea Accepted Without Rule 11 Colloquy

by Christopher Zoukis

The U.S. Court of Appeals for the Seventh Circuit reversed a conviction pursuant to a guilty plea that the district court accepted, but was not accompanied by a Federal Rule of Criminal Procedure 11 colloquy. The January 25, 2018, opinion remanded the case for entry of a new plea.

Ricky Olson was indicted on charges of distributing sexually explicit photographs of his minor daughter in violation of 18 U.S.C. § 2252(a)(2). He initially pleaded guilty on April 6, 2016, pursuant to a plea agreement in which the government agreed to dismiss several charges and to recommend a sentence of not more than 180 months. Before accepting the plea, the district court conducted a Rule 11 colloquy.

Olson changed his mind soon after pleading guilty, however. On August 26, 2016, he moved to withdraw his guilty plea, and his attorney moved to withdraw from representation. Olson explained to the court that he hadn’t understood the plea agreement and that his attorney had given him bad advice. The district court granted both motions.

With a new attorney on board, Olson changed his mind again. On September 9, 2016, he appeared in court and said ...

N.Y.’s Top Court Clarifies Freedom of Information Exemption for Disclosure of Confidential Sources of Information

by Christopher Zoukis

The New York Court of Appeals made an important clarification to an exemption to the state’s Freedom of Information Law (“FOIL”), which restricts access to records compiled for law enforcement purposes that identify confidential sources or information.

The November 21, 2017, opinion ruled that the exemption may only be applied when an express promise of confidentiality was made to the source or when the circumstances are such that “the confidentiality of the source or information can be reasonably inferred.”

Jessie Friedman and his father pleaded guilty to various sex crimes relating to their alleged ritualistic sexual abuse of children in the late 1980s. Friedman, who was 18 at the time of his plea, spent 13 years in prison for his conviction. His father died in prison.

In 2002, the film “Capturing the Friedmans” was released. The movie suggested that the Friedmans had been caught up in the wave of bizarre child sexual abuse cases in the 1980s and early 1990s, and that they were factually innocent. The filmmakers uncovered the use of unreliable and since discredited interview techniques on the child witnesses — including hypnosis — among other irregularities.

Friedman brought a federal habeas corpus petition ...

Indigent Defense in America: An Affront to Justice

by Christopher Zoukis

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall have the right ... to have the Assistance of Counsel for his defense.” What exactly the “right” to counsel in a criminal matter means has been the subject of debate in legal circles and courtrooms since the amendment was written. For instance, if a person is charged with a crime, but cannot afford to pay for an attorney’s services, does he still have the right to counsel? And if so, where does the attorney come from, and how is she paid?

The U.S. Supreme Court settled the first question over 50 years ago in the seminal case Gideon v. Wainwright, 372 U.S. 335 (1963). In Gideon, the Court made it clear that the Sixth Amendment “requires appointment of counsel in ‘all criminal prosecutions’”—even when an indigent defendant cannot afford a lawyer. “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries,” wrote the Court, “but it is in ours.”

Thus, for over five decades, it has been well-established that defendants in criminal ...

“Get Out of Jail” Free Cards for Cops’ Family, Friends Cut

by Christopher Zoukis

The Patrolmen’s Benevolent Association (“PBA”), New York City’s largest police union, cut the number of “get out of jail free” cards given to officers for their friends and family. In years past, cops were allotted 30 cards each, but that number was recently lowered to 20.

The cards generally allow the bearer to get out of minor infractions, such as speeding tickets. According to the New York Post, presenting one lets police officers know that you have some status with an NYPD member. While few outside of police circles have ever heard of such a practice, it has been around for decades. And it’s not without controversy.

“Cop unions are protection rackets,” said Adam Bates, former policy analyst with the CATO Institute’s Project on Criminal Justice.

The move to limit the number of cards given to cops was made by Patrick Lynch, president of the NYPD PBA. According to the Post, the cut was ordered to stop the sale of the cards, which can sell for as much as $200 on eBay.

Members of the force were not happy with the decision to slash the number of cards they can give out. “They are treating active ...




 

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