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Articles by Matthew Clarke

Massachusetts Supreme Judicial Court Announces Blood Alcohol Test Results From Blood Drawn Under Court Order but Without Consent Is Inadmissible

The Supreme Judicial Court of Massachusetts held that consent to testing and analysis is required for the results of a blood alcohol test to be admissible in an operating a motor vehicle under the influence of alcohol (“OUI”) prosecution even when there was a court order for ...

Kentucky Supreme Court: Criminal Defendant Has Right to Independent Counsel During In-Chambers Hearing on Fitness of Defense Counsel

Terrence Downs was ...

First Circuit: Prosecution Under Puerto Rico and Federal Law for Same Drug Offense Constitutes Double Jeopardy

Michigan Supreme Court Reverses Murder Conviction Due to Unreliable, Suggestive Showup

Seventh Circuit: Prior Conviction Under Overbroad State Drug Statute May Be Used in Career Criminal Enhancement But Not For Prior Drug Crimes Enhancement

An Illinois police task force found Nathaniel Ruth in possession of cocaine and a gun. He was indicted for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(l), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 84l(a)(l), (b)(l)(C). The Government notified Ruth that it would be using a 2006 Illinois conviction for possession of a controlled substance (cocaine) with intent to distribute, in violation of 720 ILCS 570/40l(c)(2), to enhance his maximum sentence from 20 to 30 years under 21 U.S.C. § 84l(b)(l)(C). Ruth did not object.

The probation office used the same 2006 state drug conviction, along with another prior conviction, to ...

Colorado Supreme Court Holds Successfully Completed Deferred Judgment Does Not Count as Conviction Barring Relief From Sex Offender Registration


by Matt Clarke 

The en banc Supreme Court of Colorado held that the successful completion of a deferred judgment for a sex offense, which resulted in the dismissal of that charge, does not count as a conviction for purposes of the bar to petitioning a court to discontinue requiring sex offender registration for a person who “is convicted” of more than one sex offense set forth in § 16-22-113(3)(c), C.R.S. (2019), of the Colorado Sex Offender Registration Act. 

As part of a plea agreement, Brian Keith McCulley pleaded guilty to one count each of second-degree sexual assault in violation of 18-3-403(l)(a), C.R.S. (2000), a fourth-degree felony, and third-degree sexual assault in violation of 18-3-404(l)(c), C.R.S. (2000), a class 1 misdemeanor.

He was sentenced to a four-year deferred judgment for the felony and received a 60-day jail sentence plus two years of probation for the misdemeanor. The probation required him to comply with the terms of the deferred judgment, and one of those terms was that he register as a sex offender.

McCulley successfully completed the terms of the felony deferred judgment, and the court ordered his guilty plea withdrawn and dismissed the felony charge.

Thus, the ...

Mississippi Supreme Court Vacates Capital Murder Conviction Obtained With Bite Mark Comparison Evidence

On February 2, 1992, smoke from a small, smoldering fire led to the discovery of the body of Georgia Kemp, 84, in her house. An autopsy determined that she had been beaten, raped, strangled, and stabbed; however, no bite marks were found on her body, which was subsequently buried.

Three days later, the doctor who performed the autopsy requested an additional study of Kemp’s body, which was exhumed and examined under ultraviolet light by Dr. Michael West, a forensic odontologist. He discovered otherwise invisible marks on the right breast, right side of the neck, and right arm. He used dental impressions of Eddie Lee Howard, Jr.’s teeth to perform a “wound duplication test with ink” and determined that the mark on the right breast ...

Eleventh Circuit: Time Served Adjustment Is Mandatory Under Sentencing Guidelines Even After Booker

Christopher Henry pleaded guilty in Alabama state court to stealing eight firearms during a business burglary. Because of his prior convictions – one for assault and 10 for burglary – he was sentenced to 20 years in prison.

Two years later, Henry pleaded guilty in federal court to being a felon in possession of a firearm – based on his theft of the firearms. His presentencing investigation report showed a Guidelines range of 130 to 162 months but was reduced to the statutory maximum for his crime, 120 months. The court sentenced him to 108 months. 

Henry requested a downward adjustment of his sentence for the 24 months he had already served on the state burglary conviction pursuant to U.S.S.G. § 5Gl.3(b)(l). Citing his lengthy criminal ...

Michigan Supreme Court: Probation Compliance Check During Unlawfully Extended Probation Was Unauthorized Warrantless Search

The Supreme Court of Michigan ruled that a probation officer who found heroin during a compliance check after the probation had ended and then been unlawfully extended conducted an unauthorized warrantless search.

John D. Vandenpool was sentenced to two years of probation on June 24, 2013. On September 23, 2015, his probation officer petitioned the court to extend his probation until June 25, 2016, because he had been on “warrant status” during part of the probation and had not paid all of his fines and fees. The extension was granted.

On November 12, 2015, the probation officer applied for a warrant for Vanderpool because he had failed a drug screening. On December 3, 2015, he applied for another warrant because Vanderpool failed to show up for his weekly appointment at the probation office. The next day, the probation officer conducted a “compliance check” of Vanderpool’s home and found a small amount of heroin, which Vanderpool admitted was his. This led to Vanderpool’s prosecution for possession of under 25 grams of heroin.

Vanderpool filed a motion to suppress the heroin, which was denied. Vanderpool pleaded no contest and was sentenced to 18 months to eight years for possession ...

California Court of Appeal Holds Canizales Decision Limiting Kill Zone Theory Applies Retroactively

Juan Marshall Rayford and ...



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