by Matt Clarke
On September 14, 2017, the U.S. Court of Appeals for the Third Circuit reversed the portion of the sentence that restricted a former Realtor who had pleaded guilty to one count of mail fraud from working in real estate for five years following his release from prison. It held the maximum restriction possible for that offense was three years. The Court upheld his 70-month prison term followed by three years of supervised release.
Randy Poulson operated fraudulent real estate and investment schemes in New Jersey from 2006 through 2011, costing over 75 victims a total of $2,721,240.91. Using his company, Equity Capital Investments, LLC, he tricked people facing foreclosure on their properties to sign over their deeds to him in exchange for a false promise to pay off the outstanding mortgages. He then used Poulson Russo LLC, a real estate investment education company, to organize for-fee speeches, seminars, monthly dinners, and private tutorials during which he solicited attendees to invest in Equity Capital, falsely claiming their money would be used to purchase, maintain, and improve those residential properties.
He convinced over 25 people to deed him their properties and over 50 people to ...
by Matt Clarke
On March 6, 2018, the Supreme Court of Ohio held that the State must provide a prisoner the DNA profile created after his application for post-conviction DNA testing of crime-scene evidence was granted.
Tyrone Noling received the death penalty for the 1990 murder of an Ohio couple. In 2008, he filed an application for post-conviction DNA testing of a cigarette butt found on the driveway of the couple’s home. The court noted that the pre-trial DNA test on the cigarette butt excluded Noling as the source of the DNA and was definitive, so it denied his application.
In 2010, Noling filed a second application based on newly discovered evidence pointing to other suspects and that advances in DNA testing could provide a definitive identification of the DNA on the cigarette butt. His application was denied, and he appealed.
The Ohio Supreme Court held that a trial court must apply the statutory definition of “definitive DNA test” before dismissing a subsequent application for post-conviction DNA testing. It reversed and remanded, instructing the trial court to consider whether the newly discovered evidence regarding other suspects showed, by a preponderance of the evidence, a possibility of discovering new, previously undiscovered ...
by Matt Clarke
The transcript of a panel discussion titled “Life After the Death Penalty: Implications for Retentionist States,” presented by the Committees on Capital Punishment of the American Bar Association Section of Civil Rights & Social Justice and the New York City Bar Association, which was posted on the latter’s website on January 26, 2018, revealed that there was no increase in the murder rate for civilians or police officers in states that abolished the death penalty.
A longstanding argument by death penalty proponents is that abolition would lead to a “parade of horribles,” including an increased overall murder rate and increased police officer murder rate. The topic of panelist Robert Dunham, executive director of the Death Penalty Information Center, was statistical information about the effect of death penalty abolition in the modern era as shown by FBI crime statistics since 1987, the first year for which statistics on law enforcement officers feloniously killed in the line of duty are available. The Center does not take a position for or against the death penalty but is critical of how it is administered across the U.S.
Dunham first noted that currently 31 states and the federal government ...
by Matt Clarke
On October 5, 2017, the Supreme Court of New Mexico held that an impaired driver generally could not be subject to criminal penalties for refusing to submit to a blood test for the presence of alcohol or drugs.
On April 23, 2011, Laressa Vargas encountered a DWI checkpoint in Albuquerque, New Mexico at 1 a.m. When she said, “good afternoon,” she and her car had a faint odor of alcohol, and her eyes were bloodshot. A deputy immediately suspected that she was driving under the influence of alcohol. She denied drinking alcohol.
The deputy asked her for a breath sample. She consented and registered 0.04. He requested another sample. She once again consented and registered 0.05. Interpreting the tests as inconsistent with his perception of her level of impairment, the deputy asked Vargas for a blood sample. She refused.
The deputy did not have a warrant for a blood test, nor could he have obtained one because state law required that such a warrant affidavit state a belief that Vargas had committed a felony or caused death or great bodily injury while driving under the influence of alcohol. NMSA 1978, § 66-8-111(A ...
by Matt Clarke
On September 27, 2017, the Court of Criminal Appeals of Texas held that a guilty plea for obtaining a controlled substance “through the use of a fraudulent prescription form” was invalid because it was given as a result of deficient legal advice from defendant’s attorney who failed to inform defendant that the prosecution would not be able to meet its burden of proof in light of governing case law precedent.
The prosecution’s theory of the case was that Lewis had hand-written a false prescription on an otherwise legitimate preprinted prescription form bearing the name of a physician’s assistant. Darren Lewis pleaded guilty to using a fraudulent prescription form to obtain a controlled substance in violation of § 481.129(a)(5)(B), Texas Health & Safety Code Ann., and received a five-year plea-bargained prison sentence.
Once he was in prison, Lewis discovered that under Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012), the State would have been unable to meet its burden of proof to convict him of violating § 481.129(a)(5)(B). He filed a habeas-corpus application, arguing that his guilty plea was “involuntary due to the ineffective assistance of ...
by Matt Clarke
On December 11, 2017, the Supreme Court of Georgia vacated convictions and sentences for aggravated assault and firearms possession due to a merger error.
Thyrell Depree Donaldson, a Georgia state prisoner, appealed his convictions for felony murder, aggravated assault, and two counts of firearms possession, all in connection with the shooting death of Robert White Jr. The Supreme Court overruled the grounds Donaldson raised, but found two merger errors in his sentencing that he had not raised on appeal.
Donaldson was convicted of firing two shots at White, who was sitting atop the stairs outside Donaldson’s apartment. One bullet missed, but the other one struck White in the back, severing his spinal cord and perforating his aorta. As a result, he could not move his legs and died shortly thereafter due to blood loss.
Donaldson was indicted on six counts: malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault for shooting White in the back (Count 3), aggravated assault for shooting at White and missing (Count 4), possession of a firearm during the commission of a felony (murder) (Count 5), and possession of a firearm during the commission of a felony (aggravated ...
by Matt Clarke
On December 5, 2017, the Supreme Court of Rhode Island held that, “from this point forward, Shatney v. State, 755 A.2d 130 (R.I. 2000), shall be deemed abrogated and inapplicable in any case involving both an initial application for postconviction relief and an applicant who has been sentenced to life without the possibility of parole.”
It further held that the Shatney hearing given to a prisoner sentenced to life without the possibility of parole (“LWOP”) had not been sufficient to qualify as the evidentiary hearing the court had previously required for prisoners serving LWOP on first application for postconviction relief pursuant to Tassone v. State, 42 A.3d 1277 (R.I. 2012). That is, Tassone mandates that prisoners serving LWOP receive an evidentiary hearing on the merits with respect to the first application for postconviction relief.
Jeremy Motyka, a Rhode Island prisoner serving LWOP, filed his first application for postconviction relief, which was denied. He appealed, and the Rhode Island Supreme Court vacated the superior court’s judgment after the State conceded that the hearing justice failed to follow the procedure set forth in Shatney for a hearing on withdrawal of court-appointed counsel.
On remand ...
by Matt Clarke
On October 24, 2017, the U.S. Court of Appeals for the Fifth Circuit held that an indicted Mississippi pre-trial detainee’s Fourteenth Amendment due process rights were violated when she was held for 96 days without appearing before a judge or having an opportunity to post bail.
Jessica Jauch was indicted for sale of a Schedule IV controlled substance based upon the word of a confidential informant. The Circuit Clerk of Choctaw County, Mississippi, issued a capias that was served on her after she was arrested for misdemeanor traffic tickets. She quickly cleared the traffic tickets. She was still held in jail, and her requests to be brought before a judge and allowed to post bail denied because Sheriff Cloyd Halford had a policy that felony arrestees be detained until the next term of the Circuit Court.
Finally, 96 days after her arrest, Jauch was appointed counsel and had bail and a trial date set. Six days later, she posted bail. Within four weeks, the prosecutor reviewed the evidence and promptly moved to dismiss the charges. It was uncontested that Jauch was innocent of the drug charges.
Jauch filed a federal civil-rights action against Sheriff Halford and ...
by Matt Clarke
The federal child pornography case against a California doctor was dismissed after the judge excluded all the evidence seized from his home because an FBI agent lied on the affidavit supporting the search warrant for his home, falsely claiming technicians working on the doctor’s computer had discovered child pornography.
Oncologist Dr. Mark Rettenmaier brought a computer to the Geek Squad at Best Buy for repair. It was sent to the company’s central repair facility in Kentucky. There, technicians discovered a photo of a naked girl in the unallocated space of the computer’s hard drive. The photo did not depict a sex act or show the approximately 9-year-old girl’s genitalia. The technicians had an agreement with the FBI office in Louisville in which they were paid each time they tipped the FBI to child pornography on computers they repaired, so they reported the photo.
FBI Special Agent Cynthia Kayle prepared an affidavit for a search warrant of Rettenmaier’s home falsely stating that the image found was child pornography, and not mentioning that it was found in the unallocated space or that the FBI paid the Geek Squad technicians who reported it. Unallocated space is where portions of deleted ...
by Matthew Clarke
The term “junk science” does not quite cover the revolution in our understanding of the diagnosis of shaken baby syndrome. Medical experts now know that their belief in how to diagnose a clear sign of child abuse based upon a determination of shaken baby syndrome was mistaken. This new understanding may cast doubt on hundreds of murder, assault, and child abuse convictions.
In the 1970s, pediatric neurosurgeon Dr. Norman Guthkelch advanced the hypothesis that babies showing a certain pattern of injuries had been violently shaken. He thought he was on solid scientific footing. He adamantly believed that such babies—especially those with the so-call “triad” of brain swelling, together with bleeding on the brain’s surface and behind the retinas—were victims of abuse even if there were no outward signs of injury. “Shaken baby syndrome” soon became a medical consensus. In court, it was accepted as a scientific fact and used to convict hundreds of defendants.
However, over the past two decades, newer scientific research has proven that accidents, diseases, and genetic conditions can cause the damning triad and other symptoms associated with shaken baby syndrome. This has undermined faith in the credibility of a shaken baby syndrome diagnosis ...