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Articles by Mark Wilson

Oregon Supreme Court: Right to Counsel Violated by Police Questioning Defendant About an Uncharged Crime in Connection With Charged Crime for Which Defendant Represented by Counsel

by Mark Wilson

The Supreme Court of Oregon vacated a murder conviction, holding that police questioning of a represented criminal defendant about an uncharged crime associated with the charged crime for which he had counsel violated his right to counsel under the Oregon Constitution. It also held that all evidence resulting from that violation should have been suppressed.

In 2011, George West Craigen was charged with four counts of Felon in Possession of a Firearm (“FIP”). He retained counsel, Gushwa, to represent him on those charges, and Gushwa sent notice of representation to the prosecutor, stating: “Please instruct all police officers and personnel of your office not to speak to the defendant without first obtaining written permission from me.”

When Craigen was scheduled to appear for a status conference on the FIP charges, he shot and killed his neighbor, Clark, on December 30, 2011. Two days later, detectives interrogated Craigen about the shooting but did not notify Gushwa because they mistakenly believed he no longer represented Craigen on the FIP charges. Gushwa later moved to withdraw, but he was still counsel of record when Craigen was interrogated.

Early in the interrogation, detectives asked why Craigen shot Carter. He said he ...

Washington Supreme Court Announces Adoption of ‘Rule of Automatic Reversal’ When Prosecutor Flagrantly Appeals to Racial and Ethnic Bias During Voir Dire

by Mark Wilson

The Supreme Court of Washington, sitting en banc, announced a new rule for situations involving flagrant appeals to racial and ethnic bias by the prosecution during voir dire and vacated a Hispanic man’s convictions, concluding that the prosecution’s voir dire examination flagrantly “appealed to the jurors’ potential racial or ethnic bias, prejudice, or stereotypes and therefore constituted race based prosecutorial misconduct.”

Someone called police to report a possible vehicle prowler when they saw Joseph Mario Zamora walking to his niece’s house at about 9:30 p.m. on February 5, 2017. There was no actual vehicle prowler in the area.

When Zamora reached his niece’s driveway, police officer Kevin Hake approached, saying he needed to speak with him. Hake quickly became nervous, claiming later that Zamora was “looking through” him with eyes the “size of silver dollars.” Hake grabbed and attempted to restrain Zamora, supposedly fearing that he had a weapon. He did not. They struggled, and eight officers joined the fray, culminating in “what may be described as extreme acts of violence” perpetrated against Zamora. 

Zamora did not have a heartbeat or pulse when responding paramedics arrived to find him restrained by two officers, handcuffed, hog-tied, and face ...

California Court of Appeal Announces ‘Plausible Justification’ as Standard for Claiming Entitlement to Discovery Under Racial Justice Act of 2020

by Mark Wilson

In a case of first impression, the Court of Appeal of California, First Appellate District, vacated a trial court’s denial of a criminal defendant’s discovery request under California’s Racial Justice Act of 2020 and announced the framework for evaluating whether defendants are entitled to discovery of requested materials.

The California Legislature enacted the Racial Justice Act of 2020 (“Act”), effective January 1, 2021, mandating that “the State shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” Cal. Penal Code, § 745(a). Four categories of conduct violate the Act: (1) “the judge, an attorney ... , a law enforcement officer ... , an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin;” (2) during trial, in court and during the proceedings, “the judge, an attorney … , a law enforcement officer … , an expert witness, or juror, used racially discriminatory language about the defendant’s race, ethnicity or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful;” ...

Eighth Circuit: Defendant Facing Revocation of Supervised Release Did Not Knowingly and Voluntarily Waive Right to Counsel Where Appointed Counsel Admittedly Knew Nothing About Case and Advised Choosing Between ‘Big House or the Nut House’

by Mark Wilson

The U.S. Court of Appeals for the Eighth Circuit vacated a Minnesota man’s 12-month supervised release revocation sanction, finding that the U.S. District Court for the District of Minnesota improperly forced him to choose between inadequate counsel and no counsel during revocation proceedings.

Phillip Ivers was convicted ...

Seventh Circuit Vacates Federal Drug Conspiracy Conviction Because District Court Failed to Ensure Defendant Understood ‘Agreement’ Element of Conspiracy and Failed to Ensure Factual Basis for Guilty Plea

by Mark Wilson

The U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Indiana committed plain error in accepting a guilty plea without ensuring that the defendant understood the nature of the charged drug conspiracy offense and that there was ...

Hawaii Supreme Court: Plain Error Not Providing ‘Incidental Restraint’ Jury Instruction Where Kidnapping Only Charge After Dismissing Abuse Charges Prior to Trial

by Mark Wilson

The Supreme Court of Hawaii held that a trial court plainly erred in failing to instruct the jury that the “restraint” necessary for a kidnapping conviction is “restraint in excess of any restraint incidental to the infliction or intended infliction of bodily injury or subjection or intended ...

Oregon Supreme Court: Federal Law Prohibits Elected DA’s Delegation of Wiretap Authority and Overbroad Initial Search Warrant Requires Suppression of Evidence Obtained as Result of Over 20 Subsequent Warrants

by Mark Wilson

The Supreme Court of Oregon unanimously upheld a lower court’s suppression of the State’s wiretap evidence, concluding that the wiretaps violated federal law. It also affirmed the trial court’s suppression of search warrant evidence because the warrants lacked specificity and were overbroad.

During the evening of September ...

Rhode Island Supreme Court: DUI Suspect Was in ‘Custody’ so Un-Mirandized Roadside Statements Properly Suppressed

by Mark Wilson

The Supreme Court of Rhode Island upheld a lower court’s suppression of un-Mirandized statements made to police, finding that the defendant was in custody at the scene of an automobile collision.

On October 23, 2018, Joseph Corcoran’s vehicle struck a light pole on a Rhode Island ...

Illinois Supreme Court Announces Krankel’s Pro Se Posttrial IAC Procedure Applies to Juvenile Delinquency Proceedings and Clarifies That Krankel Procedure Applies to Both Appointed and Retained Counsel

by Mark Wilson

The Supreme Court of Illinois held that the Court’s pro se posttrial ineffective assistance of counsel (“IAC”) procedure applies to juvenile delinquency proceedings and extends to IAC claims against both retained and appointed counsel. The court reversed, holding that the trial court erred in failing to conduct ...

Oregon Supreme Court: State Sentencing Guidelines Control Repeat Sex Offender Downward Departure Sentences

by Mark Wilson

The Supreme Court of Oregon unanimously held that upon finding that a life without parole (“LWOP”) sentence is not appropriate under Oregon’s repeat sex offense law, sentence must be imposed under the state sentencing guidelines.

Oregon lawmakers enacted ORS 137.719 in 2001. Section 1 requires a presumptive ...



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