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Articles by Michael Berk

Kansas Supreme Court: Claim of Illegal Sentence Raised for First Time on Appeal Entitled to Merits Review

by Michael Berk

The Supreme Court of Kansas held that a court of appeals must consider a claim that a criminal defendant’s sentence is illegal even when raised for the first time in the appellate court.

In 1995, Billy Sartin was convicted of several crimes in Kansas. His sentence was ...

Texas Court of Criminal Appeals Announces New Test in Comparing Out-of-State Priors for Sentence Enhancement for Repeat Sex Offenders

by Michael Berk

The Texas Court of Criminal Appeals announced a new test for determining whether a prior out-of-state conviction is “substantially similar” to enumerated Texas offenses for application of enhanced penalties for repeat sex offenses, explicitly overruling two precedential decisions.

The State sought to enhance Walter Fisk’s sentence under ...

Tenth Circuit: ‘Relevant Background Law’ Trumps Unclear Record in Granting § 2255 Relief From Johnson Error

by Michael Berk

The U.S. Court of Appeals for the Tenth Circuit reversed the denial of a successive motion under 28 U.S.C. § 2255, remanding the case for resentencing where the “relevant background legal environment” demonstrated that his sentence was based on the Armed Career Criminal Act’s (“ACCA”) unconstitutional residual ...

Ninth Circuit: Drug Quantity in PSR Adopted by Sentencing Court not Binding in § 3582(c)(2) Sentence Reduction Proceedings

by Michael Berk

The U.S. Court of Appeals for the Ninth Circuit held that a court determining eligibility for a sentence reduction based on an amended Guidelines range is not bound by the conclusions of a pre-sentence report (PSR) “adopted” at sentencing in the absence of explicit quantity findings by ...

Arrest for Shouting ‘F—k You’ to Arkansas Trooper Violates First and Fourth Amendments Rights, Eighth Circuit Rules

by Michael Berk

An Arkansas state trooper violated a motorist’s First and Fourth Amendment rights when he arrested him for yelling “F--k you,” the U.S. Court of Appeals for the Eighth Circuit held in June 2019, affirming the district court’s denial of qualified immunity for the official.

In 2015, trooper ...

Change to New York Misdemeanor Definition May Benefit Non-Citizens

by Michael Berk

New York’s new amendment to its penal code reduces the maximum sentence for Class A misdemeanor offenses to 364 days. The previous maximum punishment was one year in jail.

The One Day to Protect New Yorkers Act, passed by the state legislature and signed by Governor Andrew ...

Eighth Circuit Overlooks Procedural Default, Orders Immediate Release From Excessive ACCA Sentence Based on Prior Sex Offense

by Michael Berk

The U.S. Court of Appeals for the Eighth Circuit reversed the denial of William Anthony Lofton’s 28 U.S.C. § 2255 petition, remanding to the U.S. District Court for the Southern District of Iowa with instructions to vacate his ACCA sentence and immediately release him from custody.

Lofton ...

Fifth Circuit: Plain Error Requiring Resentencing Where Court Didn’t Give Defendant Chance to Speak at Sentencing Hearing and Prospective Allocution Provided Added Details to Lead Reasonable Judge to Reconsider Harsh Sentence

by Michael Berk

The U.S. Court of Appeals for the Fifth Circuit remanded Jose Santos Figueroa-Coello’s case for resentencing, holding that the district court’s violation of Rule 32 of the Federal Rules of Criminal Procedure amounted to reversible plain error. 

At this defendant’s sentencing hearing, counsel briefly mentioned several ...

‘DNA Mixtures,’ ‘Touch DNA,’ and Software-Enhanced Forensic DNA Analysis

by Michael Berk

The premise that a DNA “match” conclusively overrides nearly all other evidence in a criminal case has become a deep-seated one over the 35 years since the inception of DNA profiling. Often, though, such views are not founded upon even a basic understanding of how this powerful ...

Suspected Mishandling of DNA Tests Puts Cases on Hold in Fort Worth, Texas

by Michael Berk

The Tarrant County District Attorney’s Office has put 117 criminal cases on hold in response to suspected misconduct involving DNA testing by a Fort Worth forensic scientist.

On February 27, 2019, Amanda Schaffner’s supervisor at the crime lab noticed that there was no digital record of a ...



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