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Articles by Richard Resch

First Circuit Announces It Has Authority to Raise Claim of Error Sua Sponte for Violation of ‘Mandate Rule’ by Sentenc-ing Court on Remand

by Richard Resch

In a case of first impression, the U.S. Court of Appeals for the First Circuit held that it may raise sua sponte on appeal a claim of error not timely raised by the defendant where there was “a violation of the mandate rule.” The Court further held ...

Texas Court of Criminal Appeals Clarifies Application of ‘Estoppel’ in Plea Bargain Context and Holds Trial Court Lacked Jurisdiction to Revoke Community Supervision After Statutory Term Expired

by Richard Resch

The Court of Criminal Appeals of Texas held a trial court lacked jurisdiction to revoke community supervision where the violation occurred after the statutory maximum term of five years concluded, despite the fact he had been sentenced to a 10-year term.

Before the Court was the writ ...

Seventh Circuit Announces Procedures for Addressing ‘Facially Questionable Warrant’ Due to ‘Material Handwritten Alterations’ Unsigned or Initialed by Issuing Judge

by Richard Resch

In a case involving an issue of first impression, the U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Indiana erred by denying Russell Taylor’s motion to suppress and request for an evidentiary hearing to determine the ...

Colorado Supreme Court Announces ‘Self-Serving Hearsay’ Statements Introduced Under Rule of Completeness Not Hearsay and Do Not Render Defendant Impeachable

by Richard Resch

The Supreme Court of Colorado held that under Colorado Rule of Evidence (“CRE”) 106 if the prosecution creates a misleading impression by excluding statements made by the defendant that should be considered together with the proffered evidence out of fairness, the rule of completeness requires the ...

New York Court of Appeals Suppresses Evidence Because Police Lacked Reasonable Suspicion Necessary for Level 3 Stop and Frisk Under De Bour Framework

by Richard Resch

The Court of Appeals of New York ruled that the defendant (1) moving from the driver’s seat to the passenger’s seat, (2) positioning upper torso toward driver’s seat, (3) pulling pants up upon exiting vehicle, and (4) appearing nervous when questioned by police were insufficient to establish ...

D.C. Circuit Orders New Trial Due to Brady Violations Involving Source of Information, Not Withholding of Information Itself

by Richard Resch

The U.S. Court of Appeals for the D.C. Circuit held that the prosecution violated its Brady disclosure obligations by withholding multiple law enforcement reports from the defendant, even though most of the information within the reports was available to the defendant from other sources, because the reports ...

Wyoming Supreme Court Reverses ‘Contempt of Cop’ Conviction Because Police Were Not Lawfully Performing Their Official Duties

by Richard Resch

The Supreme Court of Wyoming ­reversed Myron Martize Woods’ conviction for interference with a peace officer because the arresting officers’ warrantless entry into his home, without any applicable exception, meant that they were acting unlawfully in effectuating his arrest, but an “elemental” requirement of this offense is ...

SCOTUS Announces Proper Remedy for Venue and Vicinage Clause Violations Is Retrial in Proper Venue, Not Barring Retrial

by Richard Resch

The Supreme Court of the United States unanimously held that a conviction that is reversed based on a judicial determination that the Venue Clause and the Vicinage Clause of the Sixth Amendment were violated due to a trial held in an improper venue does not adjudicate the ...

SCOTUS Announces § 924(c)(1)(D)(ii)’s Consecutive Sentence Mandate Not Applicable to § 924(j) Sentences

by Richard Resch

In a unanimous decision, the Supreme Court of the United States held that § 924(c)(1)(D)(ii)’s prohibition on concurrent sentences does not extend to sentences imposed under a different subsection of the statute, viz., § 924(j), and thus, when multiple convictions – including a § 924(j) conviction – ...

Ninth Circuit Announces State Habeas Petition Remains ‘Pending’ for Purposes of AEDPA 1-Year SOL While State Relief Remains Open Regardless of Whether Petitioner Utilizes It

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit held that a postconviction relief (“PCR”) application in Arizona is “pending as long as a state avenue of relief remains open, whether or not a petitioner takes advantage of it” and thus tolls the Antiterrorism and Effective Death ...

 

 

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