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Articles by David Reutter

Texas Court of Criminal Appeals Announces Order of Deferred Disposition Not a ‘Sentence’ Under Article 44.01(b)—Which Authorizes State to Appeal Illegal Sentence—Resolving Split Among State Courts of Appeals

by David M. Reutter

The Court of Criminal Appeals of Texas held that a deferred disposition or adjudication is not a “sentence” within the meaning of an authorized appeal by the State under Tex. Crim. Code Proc. art. 44.01(b). The Court resolved a statewide split among the state’s Courts of ...

Fifth Circuit: Sentence Enhancement for Maintaining Drug Premises Not Satisfied Solely by Defendant’s Single, Conclusory Statement That He ‘Maintained’ Premises When Record Shows Mere ‘Use’ of Premises

by David M. Reutter

The United States Court of Appeals for the Fifth Circuit held that the U.S. District Court for the Eastern District of Louisiana erred in applying an offense-level enhancement for maintaining a premises for the purposes of manufacturing or distributing a controlled substance based solely on the ...

‘Fictional Pleas’ and ‘Hidden Departures’: Failure to Collect Data on Binding Federal Plea Bargains Hinders Researchers

by David M. Reutter

Are federal courts participating in a legal fiction during sentencing proceedings to maintain a peculiar but potentially necessary mechanism to resolve criminal cases without a jury? That question and the effects thereof are the subject of Plea Agreements and Suspending Disbelief (“Essay”). In his Essay, Sam ...

First Circuit: Two-Level Enhancement Under § 3B1.1(c) for Leadership or Managerial Role Vacated Because Government Failed to Prove Defendant’s Order Was Actually ‘Obeyed’ by Fellow Criminal Participant

by David M. Reutter

The United States Court of Appeals for the First Circuit vacated a two-level sentencing enhancement imposed upon Djuna Goncalves after the U.S. District Court for the District of Massachusetts found he was “an organizer, leader, supervisor, or manager” under U.S. Sentencing Guidelines (“U.S.S.G.”) § 3B1.1(c). The Court ...

Texas Court of Criminal Appeals Holds Witness Wearing Surgical Mask During Pandemic Is Denial of Sixth Amendment Right to Face-to-Face Confrontation and No General Exception to This Right for Pandemic or ‘Other Global Events’ Such as Wars and Natural

by David M. Reutter

The Court of Criminal Appeals of Texas held that a witness who covered a significant part of the expressive portion of her face with a surgical mask for her “comfort” constituted the denial of the defendant’s Sixth Amendment right to fact-to-face confrontation.

The Court’s opinion was ...

The Murky Waters of Parole

by David M. Reutter

In most states, the grant of parole is an act of grace. The systems of parole vary amongst the states, but one thing is certain—prisoners have high hopes when they come under review. Another certainty, at least in New York and Florida, is that parole denials ...

Indigent Defense: Appointed Counsel Does Not Mean Free Counsel

by David M. Reutter

The law firmly provides that every criminal defendant has the constitutional right to the effective assistance of counsel. Appearance of counsel is largely dependent upon one’s financial state. A person of financial means is able to hire an attorney; courts appoint counsel for the poor. As ...

Ohio Supreme Court Announces Self-Defense Jury Instruction Does Not Require Intent to Harm or Kill Assailant

by David M. Reutter

The Supreme Court of Ohio held that a defendant need not “intend to harm or kill another person to be entitled to a self-defense jury instruction.” The Court found error in the lower courts’ ruling otherwise and concluded the defendant’s counsel was ineffective for failing to ...

California Court of Appeal: In SB 483, Legislature Intended to Prohibit Prosecution Withdrawing Plea Agreement for Any Sentence Reduction in § 1172.75 Resentencing Hearing, Even Reductions Based on Code Provisions Not Enacted by SB 483—Deepening Split in

by David M. Reutter

The Court of Appeal of California, First District, Division Three, held a trial court erred by failing to hold a resentencing hearing in the defendant’s presence after granting a motion to strike enhancements for prior prison sentences (“prison priors”). The Court further concluded that a prosecutor ...

Kansas Supreme Court Severs ‘Noisy Conduct’ Law as Unconstitutionally Overbroad

by David M. Reutter

The Supreme Court of Kansas ruled that the “noisy conduct” provision in a Wichita ordinance is unconstitutionally overbroad under the First Amendment. The Court severed the provision from the constitutional “fighting words” provision in the same subsection.

Before the Court was the appeal of Gabrielle Griffie, ...

 

 

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