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Articles by Dale Chappell

Colorado High Court Clarifies Crime-Fraud Exception to Attorney-Client Privilege

by Dale Chappell

In a case of first impression, the Supreme Court of Colorado held February 5, 2018, that a party seeking to invoke the crime-fraud exception to the attorney-client privilege must demonstrate “probable cause” that a crime or fraud is being committed by the client’s communications with his or ...

California Supreme Court Vacates Conviction and Death Sentence After Experts Recant Testimony

by Dale Chappell

The Supreme Court of California granted a writ of habeas corpus and vacated a first-degree murder conviction and death sentence after several of the experts who testified at trial recanted their testimony over 25 years later.

Vincent Benavides was convicted of first-degree murder and sentenced to death ...

Colorado Supreme Court: ‘Entry of Judgment’ for New Trial Motion Means Both Conviction and Imposition of Sentence

by Dale Chappell

“Entry of judgment” for purposes of a motion for new trial under Criminal Procedure Rule 33(c) means the finding of guilt and the imposition of a sentence, the Colorado Supreme Court held on January 22, 2018, finding a defendant’s motion for new trial was timely filed ...

DOJ: Police Shooting Family Dogs has Become ‘Epidemic’

by Dale Chappell

Cops in this country kill so many dogs each year that a specialist at the Department of Justice’s (“DOJ”) community-oriented program services office says it has become an “epidemic.” The DOJ estimates that around 25 to 30 dogs are killed by cops every day, with some ...

S.C. Supreme Court Rules Counsel’s Failure to Recognize Ex Post Facto Issue in Advising Defendant to Accept Plea Deal Constituted IAC

by Dale Chappell

The Supreme Court of South Carolina found that counsel’s advice to a defendant to take a plea deal to avoid the State’s threat to use a new, harsher sentencing law if he refused to plead guilty was “clearly deficient.” Therefore, the Court reversed the post-conviction relief ...

Ohio Supreme Court: Policy of Inventory Search Upon Arrest Does Not Empower Police to Retrieve Property from Area Protected by Fourth Amendment

by Dale Chappell

Evidence retrieved from a purse unlawfully removed from a vehicle after an arrest violated the Fourth Amendment, despite the existence of a police department policy allowing the search of the purse under the circumstances, the Supreme Court of Ohio held on January 16, 2018.

When an Ohio ...

‘Serious Bodily Harm’ Does Not Include Animals, Massachusetts Supreme Court Holds

by Dale Chappell

The term “serious bodily harm” does not include harm to animals, unless the statute expressly says so, the Supreme Judicial Court of Massachusetts held, tossing out a youthful offender indictment.

After a 14-year-old juvenile tortured a dog, the Commonwealth indicted him as a youthful offender for cruelty to animals and bestiality under G.L.c. 272, §§ 34, 77. The juvenile court granted the juvenile’s motion to dismiss the indictment because the term serious bodily harm in the youthful offender statute does not include animals. The Commonwealth appealed, and the Massachusetts Supreme Court took the case sua sponte from the Court of Appeals.

A juvenile may be tried as a youthful offender, which includes adult prison time, if the crime would have included prison if he were an adult and he was previously committed under youth services, or if the crime involved serious bodily harm, the Court explained. The question here was whether the term “serious bodily harm” applies only to humans.

Canvassing the Commonwealth’s statutes, the Court concluded that the Legislature expressly included the term “animals” when it wanted the statute to cover or apply to animals. In fact, the Legislature has done so “directly and ...

Fifth Circuit Holds Prisoner May Sign and Deliver Habeas-Related Motion on Behalf of Fellow Prisoner Under Prison Mailbox Rule

by Dale Chappell

A prisoner may sign and deliver a habeas-related motion to prison officials for timely mailing under the “prison mailbox rule” on behalf of another prisoner, the U.S. Court of Appeals for the Fifth Circuit held on January 12, 2018.

After the U.S. District Court for the Northern District of Texas denied John Uranga’s habeas corpus petition under 28 U.S.C. § 2254, challenging his life sentence in state prison for possessing less than 4 grams of methamphetamine as a habitual felony offender—a fellow prisoner helping him with his petition signed Uranga’s name on his behalf and mailed a motion to “reconsider” the court’s judgment under Federal Rule of Civil Procedure 59(e). This was to ensure Uranga would meet the deadline for filing since the prison was on lockdown. The district court denied Uranga’s motion as untimely filed, and he appealed.

On appeal, there were several issues. The first issue was whether Uranga’s Rule 59(e) motion was timely filed to toll the time to appeal. The next issue was whether the motion was actually an improper “successive” habeas petition. The final issue was whether Uranga was entitled to relief on the actual claim ...

Ohio Supreme Court Holds State Cannot Prove ‘Bulk Amount’ of Fentanyl Under Statute

by Dale Chappell

Because no standard pharmaceutical reference manual specifies a maximum daily dose in the usual dose range for fentanyl, a defendant’s conviction for aggravated possession of a “bulk amount” of the drug could not stand, the Supreme Court of Ohio held January 4, 2018.

Mark Pountney was charged with multiple offenses, including possession of 10 three-day transversal fentanyl patches, and the State sought an enhanced felony level of aggravated possession based on the amount of the drug involved. That is, the State argued that he possessed a “bulk amount” of fentanyl, a second-degree felony given the amount of the drug in his possession.

After a bench trial on the fentanyl charge, Pountney was convicted and sentenced to three years in prison after pleading guilty to the other counts. He appealed.

On appeal, Poultney argued that the State failed to present sufficient evidence that he had possessed at least five times the “bulk amount” of fentanyl under R.C. 2925.01(D)(1)(d), which is a second-degree felony under R.C. 2925.11(C)(1)(c). The court of appeals agreed and reduced his conviction to a fifth-degree felony. The State appealed to the Ohio Supreme Court, which ...

Arizona Supreme Court: Trial Court Must Tell Jury Defendant Ineligible for Parole in Death Penalty Phase

by Dale Chappell

The trial court erred by failing to tell the jury that a defendant was ineligible for parole before its decision to impose the death penalty, the Supreme Court of Arizona held November 6, 2017.

A jury found Jasper Rushing guilty of killing his cellmate at the Lewis Prison Complex in September 2010. The evidence showed Rushing “smashed in” his cellmate’s face, cut his throat, and severed his penis before he told guards, “I think I just killed my cellie.” He was charged with premeditated first-degree murder, and the State sought the death penalty. The jury found Rushing guilty of murdering his cellmate in an “especially heinous or depraved manner,” an aggravating factor under Arizona law to allow the death penalty.

On appeal, one of Rushing’s arguments was that the trial court violated his constitutional rights by refusing to instruct the jury during the penalty phase that he was ineligible for parole because his crime was committed after January 1, 1994, making him ineligible for parole under Arizona law.

The U.S. Supreme Court held in Simmons v. South Carolina, 512 U.S. 154 (1994), that when a jury is determining whether to impose the death ...


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