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Prisoner Education Guide

Articles by David Reutter

Vermont Supreme Court: Defendant Cannot be Compelled to Submit to Competency Evaluation by State’s Expert

by David Reutter

The Supreme Court of Vermont held that the State may not compel a defendant to submit to a competency evaluation conducted by a mental-health expert of the State’s choosing after a court-ordered competency evaluation by a neutral mental-health expert.

Following his arrest for second-degree murder, Christopher Sharrow’s attorney requested a competency hearing. Pursuant to 13 V.S.A. § 4814, the trial court ordered an evaluation, and the Department of Mental Health selected a neutral expert to conduct the evaluation.

The expert concluded in a May 23, 2016, report that Sharrow “is not mentally competent to stand trial for the alleged offense.” Defense counsel procured another expert to perform a competency evaluation, but there was no attempt to admit that expert’s report into the record. The State then procured its own expert and requested the trial court to order Sharrow to submit to an evaluation. The court granted the motion, and Sharrow filed an interlocutory appeal.

On appeal, the issue before the Vermont Supreme Court was whether 13 V.S.A. § 4814 gives the trial court the authority to order a defendant to submit to a competency evaluation performed by an expert retained by the ...

Iowa Supreme Court Rules District Courts Have Authority to Hear Postconviction Relief Actions Involving Deprivation of Liberty or Property Interest

by David Reutter

The Supreme Court of Iowa held that a motion for postconviction relief is the proper vehicle to challenge a substantial deprivation of liberty or property interest in certain Iowa Department of Corrections (“IDOC”) administrative actions.

In 1990, Kevin Franklin pleaded guilty to second-degree murder and second-degree sexual abuse for which he received 50 and 25 years, respectively. He has been eligible for parole since 2012.

Franklin filed a postconviction relief motion alleging he was unlawfully held in custody or other restraint — language consistent with Iowa Code § 822.2 (1)(e). He also filed a motion to correct an illegal sentence. In both motions, Franklin alleged that the IDOC required him to complete Sex Offender Treatment Program (“SOTP”) yet continually denied his request to participate. The IDOC practice of withholding SOTP until an offender is within three years of discharge artificially lengthened his sentence and effectively removed any meaningful chance of parole or work release. The parole board would not consider any relief until the completion of SOTP.

The district court combined both of these motions into one postconviction motion, and the State moved for summary judgment, arguing that this was better characterized as a parole ...

Intellectual Disability and Wrongful Conviction in Death Cases: A Lethal Combination

by David M. Reutter

The death penalty is sold by its advocates as a crime deterrent or a penalty reserved for the most heinous of crimes. The reality is that the death penalty is often used as a political tool for prosecutors and judges to enhance their re-electability and to give their local community a sense that they are in control.

While death sentences are portrayed as being carefully chosen and reserved solely for society’s worst offenders, the fact is that the vast majority of wrongful death convictions involve intellectually disabled defendants.

The New York-based Innocence Project reports that of its first 130 exonerations obtained by DNA evidence, 85 involved people making false confessions. Mental impairment is the common risk factor for false confessions. When you throw prosecutorial misconduct into the mix, the intellectually disabled meet the lethal intersection in the very place where justice is to prevail: the courtroom.

South Carolina authorities convicted Kenneth Simmons of the 1996 brutal murder and criminal sexual assault of an 89-year-old Summerville woman. In a post-conviction relief proceeding, the court vacated Simmons’ death sentence and imposed a life in prison without parole sentence because Simmons is intellectually disabled.

Intellectually disabled individuals are particularly ...

Philadelphia Tests Automating the Bail Risk Assessment Process

by David M. Reutter

Philadelphia is using part of a $3.5 million grant to create a computerized bail-risk assessment tool. The effort is part of the city’s Reentry Project.

The MacArthur Foundation selected Philadelphia to take part in its Safety and Justice Challenge. According to Gabriel B. Roberts, spokesman for the First Judicial District of Pennsylvania, “The risk-assessment tool is just one of 19 initiatives funded by the MacArthur grant to safely reduce Philadelphia County’s jail population while also reducing racial and ethnic disparities.”

“The goal with complementing a new risk tool is to reduce or eliminate cash bail,” said Michael Bouchard, director of pretrial services for the First Judicial District. “Once we have a risk tool and once we have a model with numbers, we’ll be able to allocate our resources in the pretrial arena to provide those that are more suited for community supervision than pretrial incarceration.”

“As with other initiatives, every effort will be made to reduce racial and ethnic disparities,” Roberts said. “To that end, the model, which is still being developed, will not include any information concerning race or Zip Code.”

Some criminal-justice reform advocates, however, are concerned that ...

9th Circuit: District Court Improperly Deferred to Nevada Supreme Court in AEDPA Analysis

by David Reutter

The Ninth Circuit Court of Appeals held a Nevada federal district court erred in its analysis under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) by deferring to a state court’s determination that a death-sentenced prisoner was not intellectually disabled. The Court further held the ruling in Hurst v. Florida, 136 S. Ct. 616 (2016) is not retroactive. (See December 2017 issue of CLN for discussion of Hurst.)

Before the Ninth Circuit was the appeal of Robert Ybarra, Jr., who was sentenced to death for the 1979 kidnapping, beating, and sexual assault of 16-year-old Nancy Griffith. Ybarra doused her in gasoline, set her on fire, and left her to a slow, agonizing death. The Court opined there was no question this is within the “narrow category of the most serious crimes” that qualify for the death penalty.

Ybarra’s previously sought habeas corpus reviews, claiming that intellectual disability disqualified him for the death penalty, were dismissed on “technical procedural reasons” for failing to fully exhaust remedies in state court. After his federal habeas petition was denied and affirmed in federal court, he reignited the intellectual disability claim in state court.

The state trial court held a hearing and ...

$50 Million Lawsuit Filed in "Cowboy" Tasing that Kills Detroit Teen

by David Reutter

A $50 million lawsuit was filed against a Michigan State Trooper who Tasered a Detroit teen on an ATV before the teen crashed and died. The lawsuit was filed on behalf of 15-year-old Damon Grimes' family by attorney Geoffrey Fieger.

According to Trooper Mark Bessner's attorney, "on August 26th Troopers attempted to stop Mr. Grimes who recklessly and dangerously drove on ATV as he actively resisted and evaded arrest," attorney Richard Covertino wrote in an email statement to the Detroit Free Press. "During the pursuit, Trooper Bessner was forced to make a split-second decision under circumstances on the scene and at the moment which was tense, uncertain, and rapidly evolving."

Fieger, however, called the incident "a drive-by shooting of a child on an ATV." At a news conference flanked by Grimes' parents, he said, "under no circumstances should any police officer ever shoot like a cowboy out of his vehicle, out of the window."

Michigan State Police policy prohibits deploying Tasers from a moving vehicle. Yet, Bessner's report reflects he hit Grimes with a 50,000 volt charge while trying to direct his ATV off the road. The subsequent seizure left him unable to ...

Judge's Husband Profited From Prison Stock

by David Reutter

The Iowa federal judge who oversaw the judicial proceeds for about 400 undocumented immigrants who were arrested at the country's largest kosher slaughterhouse may have committed ethical violations by coordinating the raid.

The May 12, 2008 raid made headlines for being the largest workplace raid to date, and its judicial proceedings caused congress to hold hearings. Little known, however, was the financial windfall that accrued to federal Judge Linda R. Reade's husband. Five days before the raid, her husband bought between $30,000 and $100,000 worth of Corrections Cooperation of America (aka CoreCivic) and GEO Group stock.

In March 2008, Reade attended a meeting with U.S. Attorney Office officials where the "parties discussed an overview of charging strategies," an Immigration and Customs Enforcement memo stated. Reade learned that about 700 arrests were expected, and she "indicated full support for the initiative."

Following those meetings, Reade and other court official created "scripts" for the post-raid hearing that included model plea bargains. Once the plant was raided, the arrested were taken to the National Cattle Congress, a fairground where several judges handled hearings over nine days.

Typically illegal immigrants are charged with civil violations and deported. In ...

Louisiana: Reform Results in Early Releases

by David Reutter

Laws aimed at reducing Louisiana's prison population resulted in the release of about 1,400 prisoners on November 1, 2017. While the population reduction from those laws will save taxpayers $262 million, those who benefit from free prisoner labor are against the change.

Louisiana is America's prison capital, for it imprisons more of its citizens per capita than any other state. In 2015, it imprisoned 776 people per 100,000 residents. The national average is 458, Bureau of Justice Statistics data states.

To change that, Louisiana legislature during its 2017 session passed the Justice Reinvestment Act. It comprised 10 bills and hopes to reduce the state's prison population by 10-12 percent. In addition to creating alternatives to prison, it reduced the amount of time to be served by non-violent and non-sex offense prisoners from 40 to 35 percent of the sentence.

The change made about 1,400 prisoners eligible for release on November 1, 2017, and is expected to increase by 30 the average number of prisoner released each month. According to the Louisiana Department of Public Safety and Corrections (LDOC), it releases around 1,500 prisoners monthly, so it is releasing the same ...

Man Arrested for Crime He Stopped Sues for $1.5 Million

by David Reutter

Typically an employee who intervenes to tackle a perpetrator to prevent a shoplifting is extolled as a hero. A Decatur police detective investigating the crime, however, arrested the employee and charged him with the crime. Now, the detective faces a $1.5 million lawsuit.

Omar Malcolm was working at a Verizon store on January 23, 2016, when he tackled one of two shoplifters and grabbed an iPad from one of the two suspects, who both subsequently ran away. Detective Alexander Vots of the City of Decatur Police Department investigated the crime.

Months later, Vots learned Malcolm's fingerprint was found on the iPad. He then sought a warrant for Malcolm's arrest, and Malcolm was arrested on December 10, 2016. He spent three days in jail before the mistake was uncovered by his attorney, J. Max Davis.

Davis obtained a copy of the surveillance video used to support the arrest warrant. Vots, however, relied on the wrong video.

"It was date stamped the 16th of January," Davis said. "it showed two different employees, a different situation. It was the same store, but it was clear in the corner that it was from 1-16-2016." Then, Davis obtained ...

ABA: Tennessee Court Violates Misdemeanants Right to Counsel

by David Reutter

At the request of the American Bar Association (ABA) Section of Civil Rights and Social Justice, Arch City Defenders of St. Louis conducted a court watching program of Tennessee's Davison County General Sessions Criminal Court in Nashville. The observers found an "extremely serious and pervasive problem that can no longer be ignored or tolerated."

The court watchers observed proceedings in Court 1A and 3A on September 12, 2016. Court 1A processed 30,215 defendants on misdemeanor citations in 2016; over 2015 and 2016, 805 of those defendants were not represented by a lawyer when their charges were resolved.

The observers watched as defendants were booked, photographed, and fingerprinted in a room across the hall from Court 1A. When they arrived in the courtroom, there was no judge or public offender. A prosecutor, however, was present, and she announced that anyone who wished to plead guilty should approach her as she read the defendants' names.

As defendants approached her, the prosecutor offered suspended sentence with various other conditions that ranged from a fine to a class. The offers were made to multiple groups with the same crime, and when they accepted the offer the court would accept ...


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