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The Habeas Citebook: Prosecutorial Misconduct

Articles by David M. Reutter

Ohio Supreme Court: Ineffective Assistance of Counsel Analysis Applies to Failure to Seek Waiver of Court Costs

by David M. Reutter

The Supreme Court of Ohio held that when trial counsel fails to request a waiver of costs on behalf of a defendant who has previously been found indigent, the reviewing court must make a prejudice determination under the ineffective assistance of counsel analysis.

The Court’s decision came in a certified-conflict case in which the Court was asked to determine whether trial counsel’s failure to file a motion to waive costs at a defendant’s sentencing hearing constitutes ineffective assistance of counsel when the defendant has previously been found indigent. This question arose after the Fifth and Eighth District Court of Appeals reached differing conclusions on the matter.

The Eighth District in State v. Gibson, 2017 Ohio App. LEXIS 107 (2017), found that “a prior finding by the trial court that a defendant was indigent demonstrated a reasonable probability that the trial court would have waived costs had counsel made a timely motion.” In the case before the court, the Fifth District rejected that rationale. It found that opinion predated a 2013 amendment to R.C. 2947.23(C), which allows a trial court to waive costs of prosecution at any time after sentencing. As the appellant, Benjamin A. Davis, ...

Michigan Supreme Court: Defendant Entitled to Self-defense Jury Instruction

by David M. Reutter

The Supreme Court of Michigan held a trial court erred in denying a defendant’s request for a self-defense instruction on the basis that a defendant who claims another person committed the homicide is not entitled to a self-defense instruction. It also held it was improper to exclude testimonial evidence that tended to support the self-defense theory where the trial court improperly made a factual finding that defendant and another person were the initial aggressors and could have fled.

The Court’s ruling came in an appeal brought by Nadeem Yousaf Rajput. Rajput and a man known only as Haus were riding in Rajput’s car on May 7, 2016, when a red Malibu with two occupants approached and fired shots at Rajput and Haus. After returning to Rajput’s home, Rajput and Haus went looking for the Malibu.

When they found the car, its sole occupant was Lakeisha Henry. They gave chase, trapped the vehicle, and approached Henry. An argument ensued, and multiple shots were fired, resulting in Henry’s death. At trial, Rajput argued Haus shot Henry when she reached for the gun in her car. The trial court denied a self-defense instruction. It also refused to admit ...

Expert’s Burn-Pattern Conclusions Flawed

by David M. Reutter

The admission of expert opinion based on science is powerful evidence that is supposed to assist the jury in determining the truth surrounding an event. When a flawed opinion comes into play, the scales of justice become tilted.

Those scales were titled when Dr. Matthew Cox became involved in two child-abuse burn cases in Texas. Cox is part of the growing subspecialty of doctors who assist child-welfare investigations. He completed a pediatric fellowship in Philadelphia and evaluated hundreds of cases of suspected abuse in the years that followed. Then he became the medical director of the Referral and Evaluation of At-Risk Children at Children’s Medical Center in Dallas.

Cox examined a two-year-old with serious burns on her feet up to her ankles. Cox reported the injuries to authorities and later testified, “The pattern of her burn injuries is what I would call a forced immersion.” When pressed by a defense attorney, Cox doubled down: “Absolutely, this is child abuse.”

That testimony was based solely on Cox’s experience and opinion of what occurred. The judicial system gives great weight to the testimony of alleged experts. To be admitted as an expert witness, one needs to have training ...

Law Review Article Zeros in on Roadblocks to Plea Bargain Fairness and Effectiveness

by David M. Reutter

More light must be shed on the plea-bargaining process, concludes a law review article published by Texas A&M University School of Law. 

Transparent data is needed to “promote negotiation effectiveness, competence in representation, and procedural justice.”

The article was written by Andrea Kupfer Schneider, law professor and director of the Dispute Resolution Program at the Marquette University School of Law, and Cynthia Alkon, professor of law and director of the Criminal Law, Justice, and Policy Program at the Texas A&M University School of Law.

The 60-page article takes an in-depth look at the secretive plea-bargain process and uses negation theory as a framework to assert that more information can improve this crucial component of the criminal justice system. As the Supreme Court of the United States (“SCOTUS”) has stated, “criminal justice today is for the most part a system of pleas, not a system of trials.”

Over 90 percent of all criminal cases nationwide are resolved through plea bargaining.

The article’s authors “argue that information, or lack thereof, is a significant limitation in ensuring legitimacy of plea bargaining and the entire criminal legal system.” They also assert that more information about the plea bargaining process ...

Seventh Circuit Vacates Guilty Pleas Based on Misinformation of Mandatory Minimum

by David M. Reutter

The U.S. Court of Appeals for the Seventh Circuit vacated the sentences imposed via plea agreements of two defendants due to errors regarding the mandatory minimum sentences they would have faced. The Court held that their prior state convictions were not prior drug convictions under federal law. It affirmed the sentences of three other co-defendants.

Before the Court were appeals of five defendants who faced charges related to their involvement in the Zamudio drug organization, which distributed pounds of methamphetamine and cocaine in the Indianapolis, Indiana, area. Their arrests and indictments came after federal agents executed approximately 40 search warrants. The searches netted over 70 firearms, about 15 pounds of methamphetamine, smaller quantities of cocaine, marijuana, and heroin along with cash. At least 80 people were indicted.

The Seventh Circuit found the district court properly applied the supervisory role enhancement aggravator to Maria Gonzalez. The evidence showed she was a leader who laundered the organization’s money. Her 300-month sentence was affirmed.

Reynold De La Torre challenged on appeal conditions of his supervised release, but the Seventh Circuit found they were waived because he did not object to them in the district court. It also found the ...

Iowa Supreme Court: Officer’s Delay of Traffic Stop to Investigate Other Matters Unconstitutional

by David M. Reutter

The Supreme Court of Iowa reversed a motion court’s denial of a motion to suppress. The Court held a police officer failed to develop a reasonable suspicion of other criminal activity before unreasonably prolonging a traffic stop.

Johnson County Sheriff Office Deputy Cody O’Hare was responding to another call on eastbound Interstate 80 when he came upon a rental car driven by Juan Salcedo. O’Hare was cruising at about 75 mph when he came upon Salcedo, who was in the left most lane at a speed of about 60 mph in a 70 mph zone. Salcedo failed to move to the right, and after about three miles, O’Hare initiated a traffic stop for traveling too slowly in the left-hand lane in violation of Iowa Code § 321.297(2).

Once pulled over, Salcedo handed over his documentation and the rental agreement. He was pat searched and sat in the front of O’Hare’s patrol car as requested. O’Hare inquired about Salcedo’s travel plans, which he provided in detail. Although O’Hare spent virtually the entire time he was talking with Salcedo flipping through the rental agreement, he failed to notice that the person who signed the agreement wasn’t present in ...

Lies by Former Houston Cop Facing Murder Charge Might Affect Over 14,000 Cases

by David M. Reutter

A Texas judge, Ramona Franklin, declared Otis Mallet “actually innocent” of selling crack cocaine to a Houston police officer, saying “What a miscarriage of justice we have all witnessed with your case, Mr. Mallet.”

That finding may be the tip of the iceberg as former Houston ...

Ninth Circuit Vacates Unconstitutionally Vague Supervised-Release Conditions

by David M. Reutter

The U.S. Court of Appeals for the Ninth Circuit held the search of a home listed as the residence of a parolee was legal despite the fact the parolee no longer lived at the residence. The Court further found the conditions of supervised release imposed on ...

Fourth Circuit Reverses Lower Court for Giving Dispositive Weight to Plea Agreement Language Rather Than Fact-Based Evaluation of Weight of Evidence in IAC Claim

by David M. Reutter

The U.S. Court of Appeals for the Fourth Circuit ruled that an attorney rendered ineffective assistance of counsel by advising the defendant that the crime to which he was pleading guilty carried a “mere possibility” of deportation when, in fact, it carried mandatory deportation.

Sergio Carrillo ...

Tenth Circuit Discusses Standards for Armed Career Criminal Classification

by David Reutter

The U.S. Circuit Court of Appeals for the Tenth Circuit affirmed an Oklahoma federals district court's order vacating a sentencing classification as an armed career criminal. The court also affirmed the classification as a career offender.

Before the Court were appeals brought by the government and Darius ...



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