by Douglas Ankney

In a case of first impression, the Supreme Court of California clarified that proof of first-degree murder by means of poison requires the prosecution to show that the defendant deliberately gave the victim poison with the intent to kill the victim or to inflict injury likely to cause death.

Heather Rose Brown placed her sleeping five-day-old daughter, Dae-Lynn Rose, face down on the bed between her and Dae-Lynn’s father, Daylon Reed. While the three of them slept, Dae-Lynn stopped breathing. When Brown awoke and discovered her baby was warm but not breathing, she directed Reed to call 911. The 911 dispatcher instructed Brown in administering CPR until paramedics arrived. Unfortunately, Dae-Lynn was pronounced dead upon arrival at the hospital.

An autopsy report revealed that Dae-Lynn died from exposure to methamphetamine and heroin. Brown admitted that she and Reed smoked both heroin and methamphetamine but not in the same room as Dae-Lynn. However, she fed Dae-Lynn breast milk and baby formula shortly before she died.

Brown was prosecuted for first degree murder on the theory that Brown poisoned her newborn daughter by feeding her breast milk after smoking methamphetamine and heroin. The superior court instructed the jury that ...

by Douglas Ankney

The continuous refrain of “police reform” touting “better training” and laws banning actions such as chokeholds seems to echo endlessly. In 2021, the U.S. House of Representatives passed the George Floyd Justice in Policing Act (“Act”), but it died in the Senate. However, even if the Act’s ban on chokeholds had become law, it would not have saved the life of Tyre Nichols.

Nichols was savagely beaten to death by Memphis police officers using every assault imaginable other than the chokehold. Amid the calls for “professionalizing the police” by raising the current 650 hours of training to match Finland’s 5,500 hours – or by requiring police officers to have a college degree – is Noah Smith. 

On his Substack, Smith admits that there are not “good causal studies on the impact of total hours of police training on police brutality” but argues there is some evidence suggesting particular subtypes of training are effective. Yet, one of those subtypes was the de-escalation training undergone by the officers who killed Nichols.

And while diversity in a police force is a politically correct move, it does little to prevent police brutality as shown by the fact that Nichols was a ...

by Douglas Ankney

The group “Voters for Oversight and Police Accountability” (VOPA) apparently amassed the 25,000 signatures needed in Austin, Texas, to have a referendum entitled “Austin Police Oversight Act” added to the ballot. But there was already an “Austin Police Oversight Act” on the ballot seeking to open police records to public access and to give the city’s office of police oversight an active role in the investigations of officer misconduct.

However, the VOPA version differed in two significant ways: (1) it was funded almost entirely by a police union – the Austin Police Association had contributed nearly every penny of the campaign’s $300,000 and (2) the VOPA version would keep particular misconduct records hidden from public eyes and give the board only a passive role in investigations.

Austin is not an outlier. In January 2023, a city councilor in Albuquerque, New Mexico, proposed abolishing the oversight board to replace it with a smaller, less powerful civilian panel. A state legislator told the Albuquerque Journal it was a “done deal.” Abigail Cerra, former chairperson of the Minneapolis Police Oversight Commission, acknowledged the importance of oversight groups as an important check on police authority: “Without any such check or oversight, ...

by Douglas Ankney 

The Court of Criminal Appeals of Texas held that the trial court erred when it prohibited William Rogers from presenting evidence to support his claim of self-defense and also when it refused to instruct the jury on self-defense.

Rogers was tried by jury on charges of Burglary of a Habitation with the underlying commission of Aggravated Assault and Aggravated Assault with a Deadly Weapon. Prior to jury selection, the State filed a motion in limine seeking to prevent Rogers from presenting over 70,000 text messages he exchanged with Sandra Watson while the two were engaged in a lengthy affair from July 2011 until the date of the offense on February 14, 2013. The motion also sought to prevent Rogers from making any mention of self-defense during voir dire, opening statements, cross-examination, and even his own testimony if he were to testify in his own defense at trial. It also sought to bar any evidence that Watson’s husband (“Complainant”) had become aware of the affair shortly before the date of the offense. The trial court granted the motion without any testimony to support it.

Rogers testified at his trial that he had been in a lengthy affair with ...

by Douglas Ankney

The Court of Appeal of California, Second Appellate District, ruled that assault with a firearm is not a violent felony for purposes of the state’s Three Strikes Law (Penal Code § 667); consequently, Rasheed Malcolm Jones was entitled to the amount of custody credits calculated under the default provision in §4019. (Note: All statutory references are to the California Penal Code.)

Jones pleaded no contest to one count of assault with a firearm and admitted having suffered a prior conviction for assault with a firearm in 2012. Jones was sentenced to four years in prison. At sentencing, defense counsel expressly requested the court to order “day-for-day” custody credits pursuant to § 4019 because while the charge of assault with a firearm qualifies as a serious felony, it is not a disqualifying violent felony. The sentencing court rejected the request, ruling Jones was not entitled to day-for-day credits because he had admitted the prior strike. The court awarded Jones presentence custody credits in the amount of 596 days (497 actual, plus 99 conduct). Jones timely appealed.

The Court of Appeal observed “[o]rdinarily, presentence custody credits are calculated according to Penal Code section 4019.” People v. Thomas, 988 ...

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit ruled that the Government’s inflammatory arguments in its sentencing memorandum and at the sentencing hearing implicitly breached the plea agreement because the sole effect of the arguments was to increase the defendant’s sentence beyond the low-end of the U.S. Sentencing Guidelines range – something the Government had promised not to do in the plea agreement.

In 2020, Gerardo Farias-Contreras agreed to plead guilty to conspiracy to distribute 500 grams or more of methamphetamine or heroin pursuant to a plea agreement that included the proviso that the “United States agrees not to recommend a sentence in excess of the low-end of the guideline range, as calculated by the United States.” According to the presentence report (“PSR”), Farias-Contreras’s adjusted advisory Guidelines range was 151-188 months in prison.

In its six-page sentencing memorandum, the Government devoted just two sentences to the recommended 151-month term of imprisonment. The remainder of the memorandum focused on the overwhelming harm drug trafficking does to families and communities; on Farias-Contreras’s long history of drug trafficking; and on information already contained in the PSR.

 The memorandum argued: “Drug trafficking is nothing less than pumping pure poison into ...

by Douglas Ankney

The Supreme Court of Georgia unanimously held that courts maintain discretion to consider “hybrid motions,” i.e., motions filed pro se by defendants who are also represented by counsel, expressly overruling precedents that held to the contrary.

Garry Deyon Johnson was convicted of malice murder and robbery and sentenced to life in prison without parole and a term of 20 years running consecutively. The judgment of conviction was entered November 17, 2000. Johnson’s lead trial counsel was granted permission to withdraw on December 12, 2000, but his other appointed counsel never moved to withdraw. The following day, Johnson filed a pro se “Extraordinary Motion for New Trial.” In January 2001, Johnson wrote the trial court clerk for copies of his transcript, stating he was appealing pro se, and the clerk supplied the transcript in response.

But in September 2001, the clerk responded to Johnson’s further requests by informing him that attorney Paul David had been appointed for the appeal and that Johnson must seek copies of any additional filings from David. However, David never entered an appearance in the case nor responded to any of Johnson’s letters.

Johnson continued corresponding with the clerk until August 2004. Then after ...

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a District Court’s denial of a motion for compassionate release was an abuse of discretion where the District Court concluded that Lonnie Edward Malone’s numerous health conditions did not provide extraordinary and compelling reasons for release and where the District Court did not recognize that the relevant factors of 18 U.S.C. § 3553(a) favor release.

In May 2008, Malone was sentenced to 330 months in prison for possession of a short-barreled shotgun in furtherance of a drug-trafficking offense and for conspiracy to distribute 50 grams or more of a mixture containing methamphetamine. In 2019, the almost-69-year-old Malone moved, pro se, for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A).

Malone explained his extraordinary and compelling reasons were his health conditions, viz., he had colon-rectal cancer, that a surgery sewed his rectum shut, and he now lived with a colostomy bag permanently affixed to his body. His medical records revealed he had cystic kidney disease, hernia, malignant neoplasm of rectum, hypertension, morbid obesity, neoplasm of uncertain behavior, hyperlipidemia, and other specified disorders of the liver.

He recounted countless issues with the colostomy bag, five surgeries to remove ...

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit declined to enforce an appeal waiver where the defendant stood convicted and imprisoned for conduct that, due to developments in the law after he pleaded guilty, did not violate 18 U.S.C. § 924(c) and was not criminal, and the Court determined that his procedural default was excused by a showing of cause and actual prejudice.

Donzell Ali McKinney was charged with substantive Hobbs Act robbery, Hobbs Act conspiracy, and a violation of § 924(c) predicated on the substantive Hobbs Act robbery. After McKinney had consistently refused to plead guilty to the substantive Hobbs Act robbery, he agreed to plead guilty to Hobbs Act conspiracy and a single § 924(c) count with the Hobbs Act conspiracy as the sole predicate offense in exchange for the Government’s agreement to dismiss the remaining charges. The plea agreement also included a waiver of the right to contest his conviction and sentence except on grounds of ineffective assistance of counsel or prosecutorial misconduct.

McKinney was sentenced in 2012 to 70 months’ imprisonment on the Hobbs Act conspiracy and a consecutive sentence of 120 months’ imprisonment on the § 924(c) conviction predicated on the ...

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit found plain error where the U.S. District Court for the District of Puerto Rico based an upward variance from the Guidelines range on new information not already in the record at the time of sentencing.

In 2011, Angel Ramos-Carreras received a five-year prison sentence and eight years of supervised release for drug-related offenses. In 2020, while serving his time of supervised release, he was arrested “for an investigation on lewd acts” and charged with violating Article 133 of the Puerto Rico Penal Code, which classifies as a third-degree felony the conduct of: “Any person who without the intention to consummate the crime of sexual assault submits another person to an act that tends to awaken, excite or satisfy the sexual passion or desire of the accused, under any [one of six enumerated circumstances - including the age of the victim being less than 16 years].” The U.S. Probation Office promptly filed a motion in the District Court to notify it that Ramos had violated the “shall not commit another federal, state, or local crime” condition of his supervised release.

At sentencing before the District Court judge, all agreed ...