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Prisoner Education Guide

Articles by David Reutter

New Jersey Appellate Division Extends Urbina Self-Defense Rule to Defense of Others in Plea Allocution

by David Reutter

The Superior Court of New Jersey Appellate Division held that a defendant was entitled to post-conviction relief (“PCR”) based on his claim that his guilty plea was involuntary due to his counsel’s failure to explore the defense of others.

Anwar H. Belton appealed the denial of his PCR motion following a plea to first-degree aggravated manslaughter that resulted in an agreed-to 12-year prison sentence. The appellate court found that Belton, “in the course of his plea allocation, suggested a defense of others that was inconsistent with his guilt; his waiver of that defense was not knowingly made; therefore, he did not present a sufficient factual basis of guilt.”

The victim died after Belton was roused from his sleep by two women involved in an altercation with a man. As the man bit and continued to clamp onto the hand of one of the women, Belton put him in a head lock until the man was “snoring.” The man died at the scene. The trial court found these facts supported the charge and that Belton knowingly waived a defense of others. It also denied his PCR motion on that basis.

On appeal, the Superior Court reasoned ...

First Circuit Holds Appeal Not Barred by Plea Agreement Waiver Provision When Sentence Exceeds Agreement

by David Reutter

The United States Court of Appeals for the First Circuit held a plea agreement’s appellate waiver provision did not bar an appeal where the district court imposed a home confinement provision that was not set forth in the agreement.

Jose Luis Lopez-Pastrana entered into a plea agreement that dismissed two of four counts in exchange for guilty pleas for possession with intent to distribute marijuana and possession of a firearm in furtherance of a drug trafficking crime. The agreement set forth a non-binding recommendation for the court “to impose a sentence at the lower end of the guidelines,” which was zero to six months and statutorily mandated sixty months, respectively.

At sentencing, the court took into consideration that Lopez-Pastrana had “a severe pulmonary illness and limited life expectancy.” The district court then imposed a zero-month sentence on the drug charge and sixty months on the weapons charge. It also imposed concurrent supervised release terms of two and five years. “It then announced the conditions of release, including a twelve-month period of home confinement that would be monitored with an electronic device,” the First Circuit noted.

A colloquy then ensued between the district court and ...

Mississippi Supreme Court Clarifies that Appellate Courts Never Serve as ‘13th Juror’ for Motion for New Trial

by David Reutter

The Supreme Court of Mississippi held that neither it nor an appellate court sits as a “thirteenth juror” when reviewing a motion for new trial. The Court clarified that in a court’s appellate capacity it does not reweigh evidence, assess witness creditability, or resolve conflicts between evidence.

That pronouncement came in the reversal of a Court of Appeals judgment that vacated the conviction of Marlon Little. The conviction stemmed from the armed robbery of David Ellis.

Ellis was the sole witness, and his identification of Little in a photo-lineup was in conflict with the initial description of his attacker that he gave to police. Nevertheless, Little was convicted and sentenced to 30 years in prison. He filed a post-trial motion for a new trial, arguing that his conviction was against the weight of the evidence. It was denied, and he appealed.

On appeal, the Court of Appeals described its appellate posture as that of “thirteenth juror.” In that role, “if it disagrees with the jury’s resolution of conflicting testimony, the proper remedy is to grant a new trial.” The appellate court found that Ellis’ initial identification conflicted with Little’s “actual physical attributes, including age and ...

Utah Supreme Court: Procedural Due Process Violated Where Failure to Participate in Sex Offender Treatment Program Used to Deny Parole to Prisoner Not Convicted of Sex Offense

by David Reutter

The Supreme Court of Utah held that the Board of Pardons and Parole (“Parole Board”) violated a prisoner’s due process rights by adjudicating him a sex offender. The designation as a sex offender was based on unproven allegations in a police report and a mistrial without conviction on the offense. The Court outlined the due process requirements to classify a prisoner who has never been convicted of a sex offense as a sex offender.

Michael Neese has never been convicted of a sex offense or adjudicated as a sex offender. That, however, did not stop the Parole Board from denying him a release date for parole based upon its determination that he is a sex offender who refused to participate in sex offender treatment.

After trial on a forcible sodomy charge ended in a mistrial, Neese pleaded guilty to two counts of obstruction of justice, one count of theft, and one count of burglary. He received a composite prison sentence of two to 30 years, and it was estimated he would be released in 2014.

The Parole Board at Neese’s original parole hearing deemed him a sex offender based upon the sodomy charge, refused to set a ...

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 ...


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