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Articles by Matthew Clarke

West Virginia Supreme Court Vacates Sentence After State Violates Plea Bargain by Making Recommendation at Sentencing

by Matt Clarke

The Supreme Court of Appeals of West Virginia ruled that a prosecutor’s recommendation that sentences should be served consecutively violated a plea agreement requiring the State to “remain silent on a recommendation at sentencing.” The Court vacated the sentence and remanded the case for resentencing before ...

Tenth Circuit Clarifies Proper Test for Pretrial Hearing on Seized Assets Needed to Retain Counsel

by Matt Clarke

The Tenth Circuit Court of Appeals ruled that the proper test for whether a district court should hold a pretrial hearing on a motion challenging the seizure of assets is whether the defendant has sufficient unseized assets to pay the reasonable costs of retaining his choice of ...

America’s Cities Are Criminalizing Homelessness

by Matt Clarke

Across the United States, cities are adopting ordinances that effectively criminalize homelessness. The behavior banned includes: sitting, lying down, or placing property on a sidewalk; camping or sleeping in public (including in a vehicle); standing on a roadway median; blocking a sidewalk; loitering; panhandling; and sharing food ...

Seventh Circuit Vacates Conditions of Supervised Release Following Child Pornography Conviction

by Matt Clarke

The U.S. Court of Appeals for the Seventh Circuit vacated three of the four conditions of supervised release (“CSR”) challenged by a man who had been convicted of possessing child pornography.

Joseph Canfield pleaded guilty to possessing digital images of child pornography in Illinois federal court ...

Ninth Circuit Grants Habeas for IAC of Resentencing Counsel Who Failed to Challenge Sole Aggravating Factor or Investigate Mitigating Circumstances

by Matt Clarke

The U.S. Court of Appeals for the Ninth Circuit ordered the granting of habeas relief to an Arizona death row prisoner based on ineffective assistance of counsel (“IAC”) at resentencing.

Michael Ray White was manipulated by a woman he was having an affair with into shooting ...

Kansas Supreme Court Holds Travel Plan Questions Unconstitutionally Extended Traffic Stop

by Matt Clarke

The Supreme Court of Kansas held that a police officer unconstitutionally extended the traffic stop he had made for following too closely when he asked questions about the driver’s travel plans for four-and-a-half minutes before requesting warrant information and criminal history checks. This required the suppression of ...

Ninth Circuit Grants Habeas for Appellate Lawyer’s Failure to Raise Denial of Self-Representation Claim

by Matt Clarke

On July 6, 2018, the U.S. Court of Appeals for the Ninth Circuit reversed a federal court’s denial of a California state prisoner’s petition for a writ of habeas corpus after determining that appellate counsel failed to raise a viable claim under Faretta v. California, 422 ...

First Circuit Vacates Supervised Release Condition Effectively Prohibiting Contact with His Minor Children

by Matt Clarke

On June 20, 2018, the U.S. Court of Appeals for the First Circuit held that a condition of supervised release prohibiting contact with minors without pre-approval from a probation officer in a plea-bargained possession of child pornography case was clear error and a miscarriage of justice ...

Do Las Vegas Prosecutors Routinely Ignore Discovery Disclosure Requirements?

by Matt Clarke

Attorneys for the Office of the Clark County (Nevada) Public Defender say prosecutors routinely violate state and federal laws governing the sharing of information known as “discovery.” They claim the situation is so grave that they have started tracking instances of prosecutorial discovery abuse. Sometimes the ...

From the Big Box to the Big House: Walmart Helps Tennessee Prosecutors Felonize Shoplifting

by Matt Clarke

Across the country, retailers’ associations are lobbying legislatures to stiffen the punishment for retail theft, allegedly to prevent “organized retail crime,” a fuzzy term often used to describe repeated shoplifting. In Tennessee, Walmart and local prosecutors have taken advantage of a broadly worded burglary statute to felonize what would otherwise be misdemeanor retail theft.

The associations of retailers are pushing for similar language in California and several other states.

Curtis Lawson ran afoul of the Tennessee statute when he “returned” $39.57 worth of products he had not purchased, using a receipt for a purchase he made earlier at a Knoxville, Walmart.

In Tennessee, shoplifting under $1,000 is a misdemeanor, but Lawson’s charges were upgraded to felony burglary after it was discovered that a different Walmart location had sent him a “Notification of Restriction from Property’’ after he was caught shoplifting there four years earlier. The notification “evicted” Lawson, informing him he was “no longer allowed on property owned by Wal-Mart Stores Inc. or in any area subject to Wal-Mart Stores Inc.’s control,” including “all retail locations or subsidiaries” forever.

Tennessee law defines burglary as “unlawfully and knowingly entering a building without the ...




 

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