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Articles by Douglas Ankney

New Hampshire Supreme Court Announces Adoption of Lafler When Reviewing IAC Claims in Plea Bargain Cases

by Douglas Ankney

The Supreme Court of New Hampshire announced that it has adopted the approach of Lafler v. Cooper, 566 U.S. 156 (2016), in reviewing claims of ineffective assistance of counsel where the defendant rejected a plea offer and chose to go to trial based upon advice of counsel.

Keith Fitzgerald was indicted on five counts of theft by unlawful taking (Class A felonies) for using his power of attorney to transfer money from his father’s accounts into accounts in his name. Each count carries a penalty of 7.5 to 15 years. The State notified Fitzgerald in a plea offer that the sentence enhancements of RSA 651:6, III (2016) could be applied because his father was over 65 years old. Unable to reach an agreement at the first settlement conference, the parties filed a motion stating they continue to “engage[ ] in productive settlement discussions [and] are in agreement that the defendant have some time to consider the State’s current offer.” 

Ultimately, the State made its final offer of two years’ incarceration in a county facility, followed by two years of home confinement in exchange for a guilty plea to all five counts.

Defense counsel advised Fitzgerald ...

Colorado Supreme Court: Convictions for Murder and Attempted Murder Violate Double Jeopardy

Jackson, along with other members of the gang known as “Sicc Made,” drove to an apartment complex to kill rival gang member “E.O.” One of Jackson’s cohorts spotted “Y.M.” exiting a vehicle similar to that driven by E.O. Mistaking Y.M. for E.O., the cohort shot Y.M. twice in the head, killing him instantly.

Relying on a complicity theory, the People indicted Jackson on several charges, including first-degree murder (naming Y.M. as the victim) and attempted first-degree murder (naming E.O. as the victim). The jury found Jackson guilty on all charges. The trial court sentenced him to life in prison without parole on the first-degree murder conviction and to a consecutive term of 24 years on the attempted murder conviction.

Jackson appealed, arguing, inter alia, that the murder and attempted murder convictions violated his state and federal constitutional protections against double jeopardy. A division of the court of appeals, believing there were two victims and relying on the doctrine of “transferred intent,” concluded that the two convictions violated double jeopardy. The court of appeals vacated ...

Kansas Supreme Court Reverses Conviction Where Trial Court Refused to Give Self-Defense Instruction

Keyes was tried for the murder of Jimmy Martin. State’s witness Carlo Malone testified that Keyes ordered him to stand outside the backdoor of Martin’s mobile home while Keyes entered the trailer armed with a pistol. He testified that he poked his head inside the door, but it was too dark to see anything. He heard an exchange of words between Keyes and Martin, culminating with Martin telling Keyes “do what you got to do.” Martin testified that he heard a gunshot and that he later helped Keyes bury Martin’s body.

Keyes testified that he neither ordered Malone to stand outside the backdoor nor was Malone even present. Keyes testified that Tina Martin – the owner of the property – had instructed him (Keyes) to evict Martin. Because Keyes knew that Martin was known to be armed with a knife, Keyes armed himself with the pistol. He confronted Martin inside the mobile home and told him he had to move. Martin threatened to kill Keyes, grabbed a knife, and began slashing it toward Keyes. Keyes ...

Sixth Circuit Vacates Sentence Where Upward Variance Based on Criminal History Had Little Bearing on Instant Offense


by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit vacated the U.S. District Court for the Western District of Michigan’s sentence where the sentence imposed was an upward variance from the Guidelines range based on the defendant’s criminal history, but that history had little bearing on the instant offense.

In 2003, 21-year-old Manndrell Lee was sentenced to 12 months in prison after pleading guilty to second degree Criminal Sexual Conduct (“CSC”). He completed his sentence. Then from 2004 to 2018, Lee consistently violated the conditions of his parole – usually by failing to comply with sex offender registration laws and the terms of his location monitoring. He was punished with incarceration for each of those violations.

In 2018, Lee pleaded guilty to possession of a stolen firearm in violation of 18 U.S.C. § 922(j). His advisory Guidelines range, based on his criminal history score of 11, was 30 to 37 months’ imprisonment. But the district court decided an upward variance was necessary because of: (1) Lee’s “long and serious criminal history,” (2) his parole violations and disciplinary violations while in custody, and (3) his 2003 CSC offense. The district court imposed a sentence of 60 months ...

QAnon and Some Cops Are Bedfellows

by Douglas Ankney

QAnon is a name associated with bizarre conspiracy theories. One is that a Satanic cabal of high-profile liberal pedophiles is running a worldwide sex ring. Another theory concerns a plot about kidnapped children held in underground tunnels so their blood can be harvested to keep wealthy people ...

Police Unions: Obstacles to Criminal Justice Reform and Police Accountability

Special Privileges That Shield Corrupt Cops

On October 20, 2014, a White Chicago police officer shot and killed a 17-year-old Black man named LaQuan McDonald. Five officers at the scene, including the shooter, said that McDonald had been slicing tires with a three-inch knife. According to these officers, when they arrived on scene, McDonald began waving the knife in an “aggressive, exaggerated manner and lunged at them,” forcing one officer to shoot and kill the teen in self-defense.

Two months later, Craig Futterman from the University of ...

Pennsylvania Supreme Court Announces Reckless Prosecutorial Misconduct Constitutes Overreaching Sufficient to Trigger Double Jeopardy Protections

In 2002, Walter Smith told police that Clinton Robinson killed Margaret Thomas. Later that same year, Smith was shot 12 times and killed outside a bar in Philadelphia. Moments after Smith was shot, his companion, Debbie Williams, went to him and picked up his black baseball cap that was lying in the street with a bullet hole in it. After the police arrived, they took Williams to the police station to give a statement. At the station, Williams gave the black baseball cap to Detective Burns and told him that Smith had been wearing it when he was shot.

The cap was assigned property receipt number 2425291. (A property receipt is a typed report that contains information about the item, including a description and the results of any forensic analysis. The property receipt number functions as a computer database key to enable prosecutors and police to view this information.)

Testing of ...

Indiana Supreme Court Announces New Analytical Framework for Review of Substantive Double Jeopardy, Overruling Richardson

A jury convicted Jordan Wadle of Operating a Vehicle While Intoxicated Causing Serious Bodily Injury (“OWI-SBI”), OWI Endangering a Person, Leaving the Scene of an Accident – Elevated to a Level 3 Felony Due to the OWI-SBI Conviction, and OWI with breath alcohol content (“BAC”) of 0.08 or More. He was sentenced to an aggregate term of 16 years with two years suspended to probation.

The court of appeals applied Richardson’s “actual evidence” test and concluded Wadle’s convictions for leaving the scene and OWI-SBI violated the Indiana Double Jeopardy Clause.

The court of appeals applied the same reasoning to the two OWI convictions and concluded they were based on the same act of drunken driving as the convictions for OWI-SBI and leaving the scene of an accident. It remanded with instructions for the trial court to vacate all of Wadle’s convictions on double-jeopardy grounds except for the conviction for leaving the scene of an accident. The Indiana Supreme Court granted the State’s petition for transfer, vacating the decision of ...

Fifth Circuit Reverses Conviction Based on Prejudicial Prosecutorial Misconduct

During an interview with FBI Agent Steven Rayes, Beaulieu identified various individuals in carjackings and bank robberies. Rayes memorialized the interview in an FBI form bearing the number 302 (“302”). Assistant U.S. Attorney Michael McMahon called Beaulieu to testify against two of the men he had named. Beaulieu refused to testify, invoking his Fifth Amendment privilege against self-incrimination. The U.S. District Court for the Eastern District of Louisiana appointed Cynthia Cimino as counsel for Beaulieu. The following day, the Department of Justice (“DOJ”) granted Beaulieu immunity from prosecution under 18 U.S.C. §§ 6002-6003. Beaulieu still refused to testify, and he was charged with felony criminal contempt. The district court appointed McMahon to prosecute the charge. Cimino withdrew as counsel, and new counsel was appointed.

Cimino was called as a witness by the defense. She testified that two letters had been provided that offered Beaulieu immunity. In a letter dated April 25, 2018, the prosecutor stated he would not use any statements Beaulieu made in his testimony against him ...

California Court of Appeal: ‘Violent Victim Rule’ Doesn’t Require Defendant to Have Had Knowledge of Victim’s Propensity for Violence

Neil Efren Delrio exchanged gunfire with his cousin, Raul Prieto. According to Delrio (the only eyewitness), Prieto became angry and pulled his nine-millimeter handgun because he believed Delrio was snubbing him, i.e., not speaking to him, “ducking” him, etc. Delrio testified he was “in fear of [his] life” after Prieto racked a round into the gun’s chamber and raised it toward him. Delrio testified he then pulled his own .40 caliber pistol and fired at Prieto. Prieto fired once in return. Delrio then fired again before getting into his vehicle and driving off. Prieto continued firing at Delrio as he drove away.

Prieto died from two bullet wounds to his abdomen. A .40 caliber bullet was recovered from his body. From the scene of the shooting, police recovered two .40 caliber cartridge casings and 15 nine-millimeter cartridge casings. Delrio’s vehicle had multiple bullet holes, and a bullet fired from Prieto’s weapon was found in the car.

Because Delrio intended to claim self-defense, prior to trial, ...



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