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Articles by David Reutter

California Court of Appeal: Petitioner Has Constitutional Right to Be Present at Evidentiary Hearing Under Felony Murder Resentencing Law

by David M. Reutter

The Court of Appeal of California, Fourth District, held that a violation of a prisoner’s constitutional and statutory rights to be personally present at an evidentiary hearing to determine if Senate Bill 1437 prohibits him from being charged with felony murder. Finding the error was not ...

Criminal Justice Reform Becoming a Corporate Priority

by David M. Reutter

With the rate of Americans who have a felony conviction steadily increasing as a result of the incarcerative state’s policies, corporate entities are experiencing a change of heart towards those with criminal records. In fact, many corporations say felons are often the most dependable, loyal, and ...

Electronic Monitoring: An Alternative to Incarceration or a Troubling Extension of Punishment?

by David M. Reutter

It is often said that life imitates art. When it comes to electronic monitoring (“EM”), your friendly, neighborhood Spiderman was a major influence for the idea to use an electronic device to track the location of persons entangled within the criminal justice and immigration systems. The use of EM has gained traction as reformers push to end mass incarceration and the cash bail bond system. Critics, however, assert that EM is just another form of government control that has an insidious impact upon those subject to EM, their families, and society as a whole. They also warn leaving EM unchecked allows Big Brother another avenue to monitor society’s every move. While others support EM by citing its positive benefits, EM’s founders regret that it has been transformed from a tool to motivate behavioral change to a form of punishment itself. 

EM is a prime example of how technology can be created for one purpose and is found to have applications in a realm its creators never intended. While studying in the 1960s at Harvard University under famed psychologists B.F. Skinner and Timothy Leary, twin brothers Robert and Kirk Schwitzgebel, who later changed their last name to ...

Massachusetts Supreme Judicial Court Announces Constructive Denial of Right to Counsel Where Defense Counsel Sleeps for Significant Portion or During Important Aspect of Trial

by David M. Reutter

In a case of first impression, the Massachusetts Supreme Judicial Court held that “a defendant constructively is deprived of his or her constitutional right to counsel under art. 12 [of the Massachusetts Declaration of Rights] where trial counsel sleeps for a significant portion of during an important aspect of trial.” The Court, therefore, vacated the judgment of conviction and ordered a new trial.

Nysani Watt was convicted of first-degree murder for the 2013 shootings that killed 16-year-old Jaivon Blank and wounded 14-year-old Kimoni Elliott. Watt informed his first appellate attorney “that his trial counsel slept during portions of the trial,” but the “first appellate counsel dismissed the issue as unmeritorious and did not investigate it further.” The conviction was affirmed on appeal.

A motion for new trial was denied in 2020. Approximately two months later, Watt “filed another motion for new trial, contending that he was deprived of his right to counsel because his attorney was sleeping during critical parts of the trial. In support of this motion, the defendant submitted his own affidavit as well as affidavits from his second appellate counsel, his codefendant, his codefendant’s two trial attorneys, the two trial prosecutors, and his ...

Vermont Supreme Court Announces Prejudice Determination for IAC Claim Based on Rejected Plea Offer Limited to Evidence Available at Time Plea Considered—Not Any Subsequent Evidence

by David M. Reutter

In a case of first impression, the Vermont Supreme Court held “that in determining whether the criminal court would have accepted a plea agreement,” the Post-Conviction Relief (“PCR”) “court can consider only evidence that was available to the criminal court at the time it would have considered the plea.”

Rein Kolts was charged in May 2014 with aggravated sexual assault of a child in violation of 13 V.S.A. § 3253a(a)(8), based on multiple sexual assaults of [his] then 13-year-old niece. “That charge carried a mandatory minimum sentence of twenty-five-years-to-life.” § 3253a(b). “Prior to his arraignment, petitioner twice confessed to committing the crime: first, to two plainclothes officers after thirty minutes of questioning, and second, to a family friend who worked at the court,” the Vermont Supreme Court noted.

Before arraignment and at the jury draw, Kolts was offered a plea agreement that provided “he would plead guilty to a lesser charge of aggravated sexual assault, 13 V.S.A. § 3253(a)(8), in exchange for a sentence of ten-years-to-life, split to serve five years.” Kolts was not informed by his attorneys of the mandatory minimum sentence before he rejected those plea offers. A jury found Kolts guilty as charged. The Court observed ...

New York Court of Appeals: Admission of Prior Bad Acts Evidence to Prove Propensity to Commit Crime Harmful Error

by David M. Reutter

The Court of Appeals of New York held a trial court erred in admitting evidence of prior bad acts evidence. It further concluded the error was not harmless and reversed, ordering a new trial.

Sebastian Telfair was arrested in June 2017 after a traffic stop, during which the officer saw a lit marijuana cigarette on the center console. An inventory search uncovered marijuana, cash, three handguns, and ammunition. The guns were registered to Telfair in Florida. A jury convicted Telfair of one count of criminal possession of a weapon in the second degree in connection with the gun recovered from the truck’s center console and acquitted of all other charges. The Appellate Division affirmed. It concluded the trial court properly exercised its discretion in admitting the evidence under People v. Molineux, 61 N.E. 286 (N.Y. 1901). Judge Barros dissented and granted the Telfair’s application for leave to appeal to the Court of Appeals and for a stay of execution of the judgment. That Court extended the stay pending determination of his appeal.

On appeal, “Telfair argued that the Superior Court deprived him of his right to a fair trial in admitting evidence of alleged prior bad ...

Lung Float Test: Junk Science Used to Convict Women of Murder

by David M. Reutter

When a woman has a child while alone that does not survive, authorities may wonder if the child was stillborn or murdered by the mother. Many medical examiners attempt to answer that question by conducting a 17th Century procedure that medical experts say is “highly inaccurate ...

Research Paper Reveals Laypeople Have Insufficient Understanding of False Confessions by Examining Prior Research Based on Surveys and Mock Juries

by David M. Reutter

Research via use of surveys and mock juries leave unexplained the “possible explanations for the often-found lack of adjustment for interrogation tactics reflected in verdicts among mock jurors.” This article summarizes a report that peered into studies by third parties that conducted experiments using these two ...

California Court of Appeal: Petitioner Has Constitutional Right to Be Present at Hearing to Determine Facts Surrounding Felony Murder Charges for Possible Resentencing Under § 1172.6

by David M. Reutter

The Court of Appeal of California, Fourth Appellate District, held that a prisoner’s constitutional and statutory rights to be personally present at an evidentiary hearing to determine if Senate Bill 1437 prohibits charging him with felony murder were violated. Finding the error was not harmless beyond ...

Oregon Supreme Court Announces ‘Escape Clause’ of Postconviction Relief Statute’s SOL Applies to Severe Mental Impairments During Limitations Period

by David M. Reutter

The Supreme Court of Oregon held that a petitioner’s mental impairments are relevant to whether the escape clause in the statute of limitations applies to postconviction petitions under ORS 138.510.

Matthew Ingle was charged with two counts of second-degree manslaughter and one count of driving under ...



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