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Articles by Dale Chappell

Innocence be Damned: Prosecutors Who Disregard Justice in Push to Win at Any Cost

by Dale Chappell

The prosecutor’s goal “is not that it shall win a case, but that justice shall be done,” the U.S. Supreme Court declared in Berger v. United States, 295 U.S. 78 (1935). Some prosecutors, however, are clearly not guided by the high court’s admonition; on the contrary, they believe that their job is to win—at any cost.

Over the last 25 years, more than 2,150 prisoners have been proven innocent. Barry Scheck and Peter Neufeld’s Innocence Project has freed more than 200 of them since its creation in 1992, while other organizations spawned from their project have freed many others wrongfully imprisoned.

Inexplicably, some prosecutors fight to keep even those proven factually innocent behind bars. These prosecutors do not merely delay justice; they actively work against it. When a prisoner is exonerated by a court, these prosecutors file appeal after appeal, or indict the exoneree all over again, instead of trying to find the actual perpetrator.

When Davontae Sanford was 14 years old, he confessed after a late-night interrogation to murdering four people in a Detroit drug house. Sanford said he was told by cops that he could go home if he gave them ...

D.C. Circuit Vacates Sentence Because Government Breached Plea Agreement by Providing Defendant’s Confidential Statements to Sentencing Court

by Dale Chappell

The government’s use of incriminating statements made by a defendant at a confidential debriefing breached the plea agreement and constituted “plain error” when the government disclosed that information to the sentencing court to push for a longer sentence, the U.S. Court of Appeals for the D.C. Circuit held.

Kamal King-Gore was arrested on June 10, 2010, for selling 60.6 grams of cocaine base to a confidential informant. After being indicted, he met with prosecutors in a voluntary, off-the-record debriefing. In a written agreement, prosecutors promised that “no statements made by or other information provided by” him would “be used directly against [him] in any criminal proceeding.”

He subsequently pleaded guilty. At sentencing, despite its promise not use any statements or information obtained during the debriefing, the government told the sentencing court that King-Gore was a major drug “wholesaler” responsible for more drugs than the court knew. The term “wholesaler” was used by King-Gore during the debriefing to describe himself. The court sentenced King-Gore to well above the mandatory minimum sentence.

He appealed the government’s breach of the agreement. On appeal, the government admitted it breached the agreement, but argued that it did not ...

Drug-Induced Homicide Laws Hurt Rather Than Help Opioid Overdose Crisis

by Dale Chappell

Lawmakers and prosecutors just don’t get it. Instead of treatment and prevention of opioid overdoses, lawmakers and prosecutors are pushing for more convictions under draconian drug-induced homicide laws in response to America’s deadly crisis. They claim it is to “send a strong message” to drug dealers.

In reality, the only “message” being heard, however, is not to call 911, lest you get charged in the death under the drug-induced homicide laws. Rather than targeting the major drug distributors as the laws were intended, prosecutors often charge friends and lovers of the victim, according to Health in Justice, an organization that opposes “criminalization of health and social problems” and tracks punitive drug policies. “Fewer than half of the cases we analyzed involved a traditional buyer/seller relationship,” noted Leo Beletsky, lead investigator at Health in Justice and associate professor of law and health sciences at Northeastern University.

“Drug-induced homicide is couched as a way to respond to the overdose crisis, but prosecutors are not held accountable for proving whether these laws are effective,” said Lindsay LaSalle, senior staff attorney at the Drug Policy Alliance, a New York-based nonprofit. “There is not a shred of evidence that ...

U.S. Supreme Court Holds Residual Clause Definition of ‘Crime of Violence’ Unconstitutionally Vague Under Due Process Clause

by Dale Chappell

The U.S. Supreme Court struck yet another residual clause definition of “crime of violence” as unconstitutionally vague in a major decision that could potentially affect thousands of prisoners serving longer prison sentences for a conviction falling under this type of clause.

When the Government sought to deport James Dimaya after his second California burglary conviction, the Board of Immigration Appeals (“BIA”) determined that his first-degree burglary conviction was a “crime of violence” under the “substantial risk of the use of force” clause and therefore an “aggravated felony,” requiring his deportation pursuant to the Immigration and Nationality Act (“INA”).

The INA requires that any alien convicted of an “aggravated felony” must be deported. This includes a conviction for a “crime of violence,” as defined in 18 U.S.C. § 16. The statute’s definition of “crime of violence” is divided into two parts that are commonly known as the elements clause in § 16(a) and the residual clause in § 16(b), which was at issue in the present case.

The statute’s two parts cover: (a) an offense that has an element the use, attempted use, or threatened use of physical force against the ...

Iowa Supreme Court Announces Indecent Exposure Statute Does Not Apply to Still Images of Genitals

by Dale Chappell

Interpreting the word ‘exposes’ in Iowa’s indecent exposure statute, the Supreme Court of Iowa held on February 2, 2018 that texting an image of one’s genitals to another does not constitute “indecent exposure” and that counsel was ineffective for failing to challenge the sufficiency of the evidence ...

Mississippi Supreme Court Reverses Conviction Ruling; State Failed to Prove ‘Constructive Possession’ of Marijuana

by Dale Chappell

The State failed to prove that packages of marijuana hidden in a car truck were in the “constructive possession” of a passenger, who was unaware they were there especially when the driver claimed ownership, the Supreme Court of Mississippi held October 12, 2017.

Marvin Carver and his ...

Sentencing Court’s Grant of Prior Custody Credit was Not ‘Clear Error’ to Allow for Removal

by Dale Chappell

The government’s “eleventh hour” motion to “correct” a sentence to remove credit for time served in a related case before federal sentencing was improperly granted by the district court, the U.S. Court of Appeals for the Fifth Circuit held November 16, 2017.

When Derrick Smothers, Terrell ...

Eleventh Circuit Holds Court May Not Dismiss 2255 Motion by Invoking Collateral Attack Waiver Sua Sponte

by Dale Chappell

A U.S. district court cannot, “of its own volition,” invoke a collateral attack waiver in a plea agreement to dismiss a § 2255 motion, the U.S. Court of Appeals for the Eleventh Circuit held on November 6, 2017.

“Efficiency can be a virtue, particularly ...

Texas Court of Criminal Appeals: Furtive Gestures, Brief Visit Not Probable Cause

by Dale Chappell

The Court of Criminal Appeals of Texas (“CCA”) held that “furtive gestures” alone did not give police probable cause to search a vehicle under the automobile exception to the Fourth Amendment’s warrant requirement.

When a marked police car pulled behind Andreas Marcopoulos’ truck, police said he made ...

N.C. Supreme Court Rules Deficient Indictment Not Jurisdictional and Issue Can’t be Raised for First Time on Appeal

by Dale Chappell

Deviations from statutory requirements are not jurisdictional and must be “properly preserved” for appellate review and not raised for the first time on appeal, the North Carolina Supreme Court held on November 3, 2017.

After Sandra Brice was found guilty by a jury in 2015 of habitual ...


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