by Douglas Ankney

The Supreme Court of Indiana held that Charlie D. Leshore, Jr., was entitled to file a belated appeal more than 21 years after his conviction because the trial court and Leshore’s attorneys failed to advise him of his right to appeal his sentence and because he promptly filed notice upon learning of his right to appeal from a fellow prisoner.

In 1999, Leshore pleaded guilty to numerous felonies. During its colloquy with Leshore, the trial court informed him that by pleading guilty he was giving up his right to appeal his conviction. The court sentenced Leshore to 70 years in the Indiana Department of Corrections. Neither the court nor Leshore’s public defender informed him of his right to appeal his sentence.

In 2001, Leshore argued in a petition for postconviction relief under Indiana Post-Conviction Rule 1 that his sentence was inappropriate due to the nature of the offense and the character of the offender. The State Public Defender’s Office reviewed Leshore’s petition, concluded the “trial court advised Leshore of all necessary rights,” and withdrew its representation. Leshore abandoned his efforts in 2005.

Then on December 20, 2021, Leshore petitioned for postconviction relief to file a belated notice ...

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that the holding of Rehaif v. United States, 139 S. Ct. 2191 (2019), applies retroactively to cases on collateral review and applies to convictions for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

In 2015, Thomas Bradford Waters was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At his trial, the U.S. District Court for the District of South Carolina instructed the jury that “it is not necessary for the government to prove that the defendant knew he was a convicted felon,” despite the fact § 922(g)(1) contains a mens rea requirement of “knowingly” violating it. Waters was sentenced to 10 years’ imprisonment, and his conviction was affirmed on appeal.

In 2019, Waters filed a pro se 28 U.S.C. § 2255 motion to vacate his conviction. While his motion was pending, the U.S. Supreme Court decided Rehaif, holding “that in a prosecution under 18 U.S.C. § 922(g) and 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to ...

by Douglas Ankney

The Supreme Court of Arkansas reversed the convictions against Jeremey Lewis on 11 counts of “distributing, possessing or viewing matter depicting sexually explicit conduct involving a child” because the images were computer-generated imagery (“CGI”) and did not depict or incorporate the image of a child.

Lewis was tried by jury on 30 counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child in violation of Arkansas Code Annotated § 5-27-602. At trial, the State’s expert, Arkansas State Police Special Agent Corwin Battle, testified that he categorized images 1 and 23 to be “comparison images” and that 23 appeared to be CGI. (“Comparative image” simply means the image was comparative to other images recovered from Lewis’ electronic devices.) Battle testified that he categorized images 15, 16, and 23-30 as CGI.

Lewis moved for a directed verdict on Counts 1, 15, 16, and 23-30, arguing the images did not contain a real person. Apparently, his motions were denied. The jury convicted Lewis of 25 counts, acquitted him of five counts, and sentenced him to a total of 42 years in the Arkansas Division of Correction. Lewis appealed, arguing that the State presented no evidence that ...

by Douglas Ankney

In People v. Kirschke, 53 Cal.App.3d 405 (1975), a firearm and toolmark identification (“FTI”) expert testified for the prosecution “that an evidence bullet had been fired by a particular firearm and that ‘no other weapon in the world was the murder weapon.’” But in post-conviction proceedings, court-appointed experts stated that a positive identification could not be made. The court found that the expert had “negligently presented false demonstrative evidence in support of his ballistics testimony.” Paul C. Giannelli, “Daubert Challenges to Firearms Identifications,” Case Western School of Law (2007) (“Giannelli’s Report”).

Then in 2006, departing from almost a century of judicial precedent, the U.S. District Court for the Southern District of New York limited the “expert” testimony of an FTI analyst by refusing to permit the expert to testify that, “to a reasonable degree of ballistic certainty,” a bullet and shell casings recovered at a crime scene came from firearms linked to the defendant. United States v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2006). District Judge Jed S. Rakoff observed in Glynn that whatever else ballistics identification analysis could be called, it cannot fairly be called science. See Id.

The following article will: ...

by Douglas Ankney

The Supreme Court of Idaho held that a confession obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), is inadmissible in the State’s case in chief against Daniel Lee Moore, but the confession may be used to impeach any claim of innocence by Moore if he were to testify at trial because Moore’s will was not “overborne” when he gave his statement, i.e., his confession was not coerced.

During Moore’s videotaped custodial interrogation regarding the fatal shooting of Dr. Brian Drake, who was shot through a window at his chiropractic office in Bonners Ferry, Idaho, Detective Sergeant Michael Van Leuven and Idaho State Police Detective Gary Tolleson accused Moore of killing Drake, which Moore repeatedly denied. After approximately four and a half minutes into the custodial interrogation, Van Leuven finally advised Moore of his Miranda rights and continued the interrogation.

They then outlined the evidence they had against Moore. Van Leuven explained to Moore the difference between a premeditated killing versus blindly shooting through a window, with the former resulting in a charge of first-degree murder and the latter being a lesser offense. Moore stated he did not know Drake and did not shoot ...

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that a defendant must satisfy all three subsections of the First Step Act, 18 U.S.C. § 3553(f)(1) in order to be ineligible for “safety valve” sentencing relief.

Julian Garcon pleaded guilty to one count of attempting to possess 500 grams or more of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. His offense carried a statutory minimum of five years’ imprisonment.

At sentencing, Garcon requested application of the “safety valve” provided for in § 3553(f), which provides that for certain crimes – including Garcon’s crime of conviction – the sentencing court “shall impose a sentence pursuant to [the U.S. Sentencing] [G]uidelines ... without regard to any statutory minimum sentence, if the court finds at sentencing” that the defendant satisfies each of the five numbered subsections. § 3553(f)(1)-(5).

While both Garcon and the Government agreed that he satisfied the requirements of subsections 3553(f)(2)-(5), the Government argued that Garcon’s prior 3-point offense made him ineligible under 3553(f)(1)(B). Garcon countered that he must meet the requirements of § 3553(f)(1)(A), (B), and (C) in order to be ineligible. The U.S. District Court ...

by Douglas Ankney
The Court of Appeals of New York ruled that under state law an alternate juror discharged from service cannot subsequently be seated to deliberate the case.

Hasahn D. Murray and two codefendants were tried on assault and robbery charges. After counsel for both parties had given their summations to the jury, the trial judge addressed the two alternate jurors: “I can’t let you go without thanking you and telling you [that] you are excused from this case and from jury duty for about six years, that is the good news. You are excused now.” The court sent the jury to lunch, and the two alternate jurors left the courthouse.

During the break for lunch, the court learned that one of the trial jurors had discussed the case at a social gathering. The court dismissed the trial juror and – over defense counsel’s objection – contacted the two discharged alternate jurors, confirmed they had not discussed the case nor formed an opinion, and directed them to return to the courthouse the following morning. The next morning, the court re-seated the first alternate juror on the jury. The jury then began deliberations, ultimately finding Murray guilty of two counts ...

by Douglas Ankney

In a case of first impression, the Supreme Court of Tennessee followed the U.S. Supreme Court’s guidance for proportionality analysis when sentencing juvenile offenders convicted of first-degree murder; held that Tennessee’s sentencing regimen imposing automatic life sentences on juveniles is unconstitutional; and remedied the violation by applying the pre-1995 state statute governing parole to juvenile offenders serving life sentences in Tennessee.

In November 2015, then 16-year-old Tyshon Booker shot and killed G’Metrik Caldwell while Caldwell resisted being robbed of money and marijuana by Booker’s friend, Bradley Robinson, who had yelled for Booker to shoot Caldwell after alerting that Caldwell had a gun. Booker fled the scene with Caldwell’s cellphone after the shooting and botched robbery attempt (Caldwell had lent Booker the cellphone so that he could call his girlfriend, and when he fled, he was unaware he still had the phone in his pocket).

Booker’s case was transferred from the juvenile court to the Knox County Criminal Court. A jury ultimately convicted Booker of two counts of first-degree felony murder and two counts of especially aggravated robbery. The trial court merged the two felony murder convictions and, without a hearing, sentenced Booker to life in prison – ...

by Douglas Ankney

The Supreme Court of Ohio ruled that Emile Weaver’s trial counsel was ineffective at her sentencing when he made mention of the term “neonaticide” without explaining its meaning and how neonaticide was applicable to Weaver’s case. The Court also found, in an unusually forceful manner, that the trial court judge demonstrated bias in denying Weaver’s postconviction motion for relief.

In 2014, Weaver was a sophomore at a university in New Concord, Ohio, and lived in a sorority house. Upon obtaining birth control at a wellness center, she was informed that she was pregnant. She testified at trial that she did not “completely” believe she was pregnant because she did not show any of the normal signs of pregnancy, e.g., she did not (1) gain weight, (2) have morning sickness or exhaustion, or (3) stop menstruating. Whenever her sorority sisters or friends asked if she was pregnant, she denied it. She never told her mother.

At trial, Weaver explained that she lied about her pregnancy because she was scared, “felt like [she] had no one,” and was “worried about getting in trouble.” When she discussed her pregnancy during her “rocky relationship” with her boyfriend, he encouraged her not ...

by Douglas Ankney

The Court of Appeal of California, Sixth Appellate District, held that the trial court erred by denying recall of a prisoner’s sentence on the erroneous premise that Senate Bill 1393 (“SB 1393”) does not apply to cases already final on appeal, and the Court further held that ...