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Articles by David Reutter

Study Exposes Public Defender Plea Negotiation Practices and Suggests New Negotiation Theory

A major tenet of negotiation theory is the claim that attorneys bargain in the “shadow of trial,” which focuses on the possible outcomes of a trial and sentencing. The study’s authors found that many attorneys operate in what the authors call the “shadow of the client” theory. Attorneys who operate in that shadow focus on the wants and needs of the client.

Over 90% of criminal cases are resolved through a plea bargain. The study under review here is the first look into the “nuts and bolts of plea bargaining.” It provides great insight into how attorneys prepare to bargain, and the priorities and backgrounds that lead attorneys to operate in one of the so-called shadows. It also tested the attorneys’ self-declared negotiation goals against their actual practices.

The authors — Ronald F. Wright, Jenny Roberts, and Betina Wilkenson — began by ...

Maryland Court of Appeals Announces Reasonableness Standard in Providing Advice of Rights to Non-English Speaking Drivers

Before the Court was a petition for writ of certiorari filed by Walter Elenils Portillo Funes (Portillo), who was found guilty by a jury of driving under the influence of alcohol, driving while impaired by alcohol, and driving while under the influence of alcohol per se.

The charges stemmed from an October 14, 2018, incident in which Montgomery County Police Officer Devon Sharkey saw a pickup truck stopped in the right-most lane of a road. Portillo was in the running truck “slumped over the wheel, apparently not awake.”

An open can of beer was in the console, and Portillo gave off “a consistent strong odor of alcohol beverage” and had “bloodshot watery eyes.” It soon became apparent English was not Portillo’s primary language. An interpreter was not available. Portillo failed a field sobriety test.

At the police station before conducting a chemical breath ...

Seventh Circuit: Rehaif Creates Defense and Invalidates Defendant’s Guilty Plea

Robert Triggs was indicted in May 2016 under 18 U.S.C. § 922(g)(9), which prohibits firearm possession by persons convicted of a misdemeanor crime of domestic violence, by a federal grand jury. That conviction stemmed from a 2008 misdemeanor battery conviction that arose from a dispute with his girlfriend.

The weapons charge resulted from a home weapons check by Tomah, Wisconsin, that police conducted after Triggs’ son and other students made violent social media threats against a teacher. Police found three hunting rifles in the living room of Triggs’ home. He moved to dismiss the indictment, raising an as-applied Second Amendment challenge to the prosecution. He principally argued the predicate conviction was more than 10 years old, but he also asserted mitigating circumstances such as his personal characteristics.

The judge denied the motion. Triggs entered a guilty plea, reserving the right to appeal the Second Amendment issue. He was sentenced to 18 months’ probation. On appeal, he raised ...

Second Circuit: Justice for Victims of Trafficking Act Applies on Per-Offender, not Per-Count Basis

Before the Court was the appeal of Paul Haverkamp. He exchanged over 400 messages on the social media app KIK with an FBI undercover agent from March 17, 2017, through April 23, 2017. Haverkamp also sent the agent about 35 image and video files and shared a link to a cloud storage account that contained hundreds of files of child pornography, which included infants and toddlers.

A search warrant was executed at Haverkamp’s apartment in July 2017. At that time, he made incriminating statements. He pleaded guilty in June 2018 to two counts: (1) distribution and receipt of child pornography and (2) possession of child pornography.

The U.S. District Court for the Southern District of New York sentenced him to 121 months in prison followed by five years’ supervised release. It also imposed a $200 mandatory special assessment under 18 U.S.C. § 3013 and a $10,000 assessment under § 3014. A condition of the supervised release required Haverkamp to submit to computer monitoring to alert the ...

Georgia Supreme Court: Counsel’s Failure to Inform Defendant of Absolute Right to Withdraw Plea Prior to Sentencing Ineffective Assistance

Morocco Jacobi Wilkey was indicted in 2014 for possession of methamphetamine with intent to distribute. He went to trial in April 2015, and on the third day of trial, while his co-defendant was testifying for the State, Wilkey elected to enter a guilty plea.

At his April 28, 2015, sentencing hearing, but before his sentencing, Wilkey’s plea counsel informed the court that, since trial, it was learned that the co-defendant had an outstanding felony warrant for the sale of methamphetamine since “August of last year.” Despite the fact the co-defendant sat in the courtroom multiple times for trial, “the warrant was not executed, nor was that information turned over to the defense at trial and that her testimony was that she was just a user, that she didn’t sell drugs, and that’s why the drugs [at issue] were not hers.”

Counsel also stated, and no one disagreed, that Wilkey had 30 days to file a motion to withdraw his ...

Colorado Supreme Court: Plea Proviso in § 18-1-409(1) Doesn’t Bar Appeal on Manner in Which Sentence Imposed

he Supreme Court of Colorado held that the “plea provisio [in Colo Rev. Stat. § 18-1-409(1) (2019)] does not preclude an appeal related to the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which the sentence was imposed.”

Before the Court was the appeal of Christopher David Sullivan. He accepted a plea agreement that provided he plead guilty to 40 substantive charges, including first degree burglary, aggravated robbery, aggravated motor theft, menacing with a deadly weapon, first degree assault, resisting arrest, and possession of weapon by a previous offender. The charges stemmed from a lengthy chase following a routine traffic stop. The district court sentenced him to 77 years’ imprisonment, which was within the 70- to 85-year range of the plea agreement.

During sentencing, the court misstated the statutory range on count 15, aggravated motor theft in the first degree, as three to 12 years instead of two to six years. No one caught the error at sentencing. On appeal, Sullivan argued that the district court had chosen the low end of what it believed to be the applicable range, but it had in fact sentenced him to ...

Sixth Circuit Grants Habeas Relief for Defendant Shackled During Murder Trial Without On-the-Record Justification

The U.S. Court of Appeals for the Sixth Circuit granted conditional habeas corpus relief to a Michigan prisoner who alleged that the use of shackles upon him during trial was unconstitutional and prejudiced his guilt determination. The majority of the Court’s opinion focused on the proper standard to determine if the error was harmless.

Ervine Lee Davenport was charged with first-degree murder in the January 13, 2007, death of Annette White. At trial, he claimed self-defense, but the jury found him guilty as charged.

“During the trial, Davenport had one hand cuffed, as well as shackles around his waist and ankles,” the Sixth Circuit noted. There also was a privacy curtain around the defense table. Defense counsel referred to the trial court’s “policy regarding the shackles” and requested they be removed during jury instruction. The court denied that request, and it made no on-the-record justification for the shackling.

On direct appeal, one of the issues Davenport raised was that “he was denied his due process rights when the trial court required him to wear shackles during the trial.” The appeals court affirmed, finding Davenport had “not shown that his restraints were visible to the jury” and ...

Michigan Supreme Court Announces Court Must Inform Defendant of Consecutive Sentencing Authority When Accepting Plea

In a case of first impression, the Supreme Court of Michigan held “that MCR 6.302(B)(2) requires the trial court, in cases where such advice is relevant, to advise a defendant of its discretionary consecutive-sentencing authority and possible consequences of that authority for defendant’s sentence.”

The Court’s April 29, 2020, ruling was issued in an appeal brought by Kelly C. Warren. He drove while intoxicated in November 2014 and also did so the following summer. In each case, he was charged, among other crimes, with operating a vehicle while intoxicated, third offense (OWI-3rd). The prosecution gave notice of a sentence enhancement as a habitual offender — as a fourth-offense habitual offender.

Warren agreed to plead guilty to one count of OWI-3rd in each case in exchange for dismissal of the remaining charges and the habitual-offender enhancement. During the plea hearing, the trial court confirmed with the parties that each charge carried “a five year maximum.”

At no point did the court inform Warren that it had authority under MCL 768.7b(2)(a) to impose consecutive sentences. It ultimately sentenced him to consecutive two- to five-year prison terms because he had committed a felony while released on bond for another ...

South Carolina Supreme Court: State Cannot Appeal Guilty Plea

The Supreme Court of South Carolina dismissed the State’s appeal of a guilty plea and affirmed denial of motions to reconsider the sentence for recusal of the trial court.

The Court’s order came in an appeal the State brought in the prosecution of Rick Quinn, Jr. He is a former member of the South Carolina House of Representatives, having served from 1989-2004 and 2010-2017 and as House Majority Leader from 1999-2004.

In 2014, a state grand jury was convened to investigate alleged public corruption by former and current members of the South Carolina General Assembly. As it related to Quinn, the investigation focused on his “practice of using his office as House Majority Leader and leader of the House Republican Caucus to direct mailing and political services to his family’s businesses, First Impressions, which did business as RQ&A.

The investigation resulted in Quinn being charged in May 2017 with statutory misconduct in office and common law misconduct in office. A charge of criminal conspiracy was lodged in October 2017. Charges of failing to register as a lobbyist was brought against RQ&A, Quinn’s father’s business, at that time.

At a plea hearing on December 13, 2017, Quinn ...

Using Location Surveillance to Fight COVID-19 May Chill Free Speech and Association

As governments act to contain COVID-19, tracing persons who have come in contact with infected persons is at the forefront of the move to contain the disease’s spread. Tracing people via location surveillance may prove to be an effective tool, but at what cost?

The Electronic Frontier Foundation (“EFF”) warns that governments’ use of location surveillance can “turn our lives into open books for scrutiny for police, surveillance-based advertisers, identity thrives, and stalkers.” The information can be used to draw “sensitive inferences,” from visits to a “health center, criminal defense lawyer, an immigration clinic, or a protest planning meeting,” EFF warned in an article.

The “fear of surveillance chills and deters free speech and association,” EFF said. “What’s more, whatever personal data is collected by government can be misused by government employees, stolen by criminals and foreign governments, and unpredictably redirected by agency leaders to harmful new uses.”

Yet several governments have used location surveillance to fight COVID-19. China reportedly built new infrastructures to track movements of massive numbers of identifiable people as a COVID-19 response. Cellphone location data to identify virus carriers was tapped by Israel; it issued quarantine orders based on that information.

The ...

 

 

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