Death Penalty Opponents Should Rethink Their Support for Life Without Parole Sentences

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—argues that life sentences without the possibility of parole (LWOP) are as problematic and damaging as the death penalty. For this reason, Professor Sarat calls upon death penalty opponents to reconsider their support for LWOP sentences.

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Kelley v. United States

Court: US Court of Appeals for the First Circuit

Docket: 19-1932

Opinion Date: February 25, 2021

Judge: Ojetta Rogeriee Thompson

Areas of Law: Criminal Law

The First Circuit affirmed the judgment of the district court denying Appellant's petition to vacate his conviction and sentence stemming from a 2003 plea agreement for being a felon in possession of a firearm, holding that the district court did not err. In his petition, citing 28 U.S.C. 2255, Appellant argued that because Criminal Procedure Rule 7 provides that an indictment "must be signed by" a government lawyer and because an assistant United States attorney in his case signed the indictment in 2003 despite having a suspended license to practice law, the indictment was invalidated, stripping the district court of jurisdiction. The district court denied the petition. The First Circuit affirmed, holding that Appellant was not entitled to relief.

United States v. Alexandre

Court: US Court of Appeals for the First Circuit

Docket: 19-2047

Opinion Date: February 25, 2021

Judge: David J. Barron

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The First Circuit affirmed Defendant's conviction in the United States District Court for the District of Maine for possessing a firearm in furtherance of drug trafficking, holding that the district court did not err in denying Defendant's motion for a hearing under Franks v. Delaware, 438 U.S. 154 (1978). After he was charged, Defendant filed a motion to suppress evidence discovered during a search of his home due to what he claimed were false statements and omissions in the affidavit supporting the application for the search warrant. The district court denied the suppression motion, including Defendant's request for an evidentiary hearing. The First Circuit affirmed, holding that the district court did not err in denying Defendant's Franks motion.

United States v. Centeno-Gonzalez

Court: US Court of Appeals for the First Circuit

Docket: 17-1367

Opinion Date: February 24, 2021

Judge: Jeffrey R. Howard

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The First Circuit affirmed Defendant's conviction of unlawful possession of a firearm, holding that there was no error in the proceedings below. Law enforcement officers stopped Defendant as he drove by in a vehicle that the officers believed matched the description of a vehicle that had just been involved in a shooting. The officers arrested Defendant and then deployed a firearm-detecting dog to inspect the outside of the vehicle. The dog sniff results where then used to obtain a search warrant for the vehicle. Based on the results of the search, Defendant was convicted of unlawful possession of a firearm. The Supreme Court affirmed, holding (1) the district court did not err by denying Defendant's motion to suppress; and (2) Defendant was not entitled to a new trial due to certain evidentiary rulings because there was no error, either individually or cumulatively.

United States v. Gonzalez-Flores

Court: US Court of Appeals for the First Circuit

Dockets: 18-1607, 19-1118

Opinion Date: February 18, 2021

Judge: Boudin

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's sentence for possession of a firearm by a convicted felon, holding that the district court did not err in sentencing Defendant but should have provided a sealed copy of the written statement of reasons (SOR) upon Defendant's request. Defendant's guidelines sentencing range (GSR) was thirty-three to forty-one months. The district court sentenced Defendant to 120 months' imprisonment and three years of supervised release - the statutory maximum - and denied Defendant's request to access the SOR. The First Circuit affirmed the sentence but remanded the case to give defense counsel access to the SOR, holding (1) the sentencing court did not err in relying on Defendant's criminal history and the type of weapon he possessed in sentencing Defendant; (2) the district court properly considered other relevant factors; and (3) Defendant should have been allowed to access the SOR.

United States v. Maldonado

Court: US Court of Appeals for the First Circuit

Docket: 19-1525

Opinion Date: February 18, 2021

Judge: William Joseph Kayatta, Jr.

Areas of Law: Criminal Law

The First Circuit vacated Defendant's sentence and remanded this case for resentencing, holding that the district court must recalculate the Guidelines sentencing range. Defendant pleaded guilty to charges of distributing and possessing with intent to distribute cocaine. Before sentencing, Defendant argued that this prior conviction as a joint venturer for an otherwise violent crime did not qualify for career-offender status. The district court sentenced Defendant to thirty months' imprisonment and six years of supervised release. The government appealed, arguing that the district court erred in deciding not to apply the career-offender enhancement. The First Circuit vacated the sentence, holding that the case must be remanded for resentencing in light of United States v. Capelton, 966 F.3d 1 (1st Cir. 2020).

United States v. Rivera

Court: US Court of Appeals for the First Circuit

Docket: 20-1340

Opinion Date: February 22, 2021

Judge: David J. Barron

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The First Circuit reversed the decision of the district court granting Defendant's motion to suppress the evidence discovered during an inventory search of a vehicle that a Massachusetts State Police trooper stopped on a highway, holding that the trooper had reasonable suspicion to make the stop. In his motion to suppress, Defendant argued that the warrantless search of his vehicle violated the Fourth Amendment. In response, the government argued that the inventory search fell within the community caretaking function. The district court disagreed, holding that there was no non-investigatory reason to conduct the inventory search. The First Circuit reversed, holding that the district court erred in granting Defendant's motion to suppress.

United States v. Rogers

Court: US Court of Appeals for the First Circuit

Docket: 18-2097

Opinion Date: February 19, 2021

Judge: Jeffrey R. Howard

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The First Circuit affirmed the judgment of the district court revoking Defendant's supervised release and sentencing him to six months of imprisonment and an additional eight years of supervised release, holding that Defendant's constitutional rights were not violated. On appeal, Defendant argued that the revocation of his release violated his privilege against self-incrimination under the Fifth Amendment and that his suspension from treatment violated his Fifth Amendment due process right. The First Circuit disagreed, holding (1) a court in this circuit can impose mandatory periodic polygraph examinations in connection with sex offender treatment programs as a condition of supervised release, where the condition prohibits basing revocation in any way on the defendant's assertion of his Fifth Amendment privilege against self-incrimination; (2) in this case, no penalty was attached to Defendant's potential invocation of the Fifth Amendment privilege, and therefore, his privilege was not violated; and (3) Defendant's suspension from sex offender treatment did not violate his Fifth Amendment right to due process.

United States v. Torres-Monje

Court: US Court of Appeals for the First Circuit

Docket: 17-2163

Opinion Date: February 24, 2021

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's conviction for possession of child pornography, holding that the Government's evidence was sufficient to convict Defendant. The district court denied Defendant's motions for judgment of acquittal, filed during the trial and then after the verdict, and then sentencing him to a prison term of time served followed by supervised release. On appeal, Defendant argued that the district court erred by denying his motions because the evidence was not sufficient to convict him. The First Circuit affirmed, holding that, even under the standard of review most favorable to Defendant, his sufficiency of the evidence challenge failed.

United States v. Rosario

Court: US Court of Appeals for the Second Circuit

Docket: 18-1994

Opinion Date: February 23, 2021

Judge: Per Curiam

Areas of Law: Criminal Law

Defendant appealed his sentence of 210 months' imprisonment for obstruction of justice based on destruction of evidence. The Second Circuit concluded that the district court did not make the findings of fact required under United States v. Dunnigan, 507 U.S. 87 (1993), before imposing a two-level sentencing enhancement for obstruction of justice under USSG 3C1.1 relating to defendant's trial testimony. The court remanded in part for further proceedings. The court disposed of defendant's remaining claims in a separate summary order filed simultaneously with this opinion.

United States v. Skelos

Court: US Court of Appeals for the Second Circuit

Docket: 18-3421

Opinion Date: February 23, 2021

Judge: Walker, Jr.

Areas of Law: Criminal Law, White Collar Crime

The Second Circuit affirmed Defendants Dean and Adam Skelos' convictions on multiple public corruption charges. Dean was a Republican senator from Nassau County, and was the Majority Leader of the New York State Senate. Defendants, father and son, were convicted in 2015 of conspiracy to commit extortion under color of official right; extortion under color of official right; conspiracy to commit honest services fraud; and solicitation and acceptance of bribes and gratuities. Defendants' convictions stemmed from their involvement in the Glenwood, AbTech, and PRI schemes. In 2016, while defendants' appeal was pending, the Supreme Court decided McDonnell v. United States, which narrowed the definition of the "official act" that a public official must exchange for benefits in order to be convicted of Hobbs Act extortion or honest services fraud, where those crimes have been defined by reference to the term "official act" in the federal bribery statute, 18 U.S.C. 201. In 2018, a second jury convicted defendants on all counts. The court concluded that any error in the jury instructions in the wake of McDonnell were harmless; the language in the indictment was sufficient where the language in an indictment is not required to be as precise as the attendant jury charge, nor is it required to delineate how the government will prove the elements set forth in the indictment; the district court empaneled a fair and impartial jury, and the district court did not abuse its discretion in denying the motion to transfer venue; there is no basis to vacate defendants' conviction under 18 U.S.C. 666 where a special verdict form specified that the jury found each defendant guilty under section 666 on both the gratuity theory and the unchallenged bribery theory; the district court did not abuse its discretion in deciding to quash certain subpoenas and there was no infringement of defendants' Fifth and Sixth Amendment rights in the district court's denial of requests for documents that were irrelevant, inadmissible, obtainable by other means, or part of discovery fishing expeditions; and the district court did not abuse its discretion in denying an evidentiary hearing. Finally, the court rejected Adam's evidentiary challenges and his challenges to the sufficiency of the evidence.

United States v. Aguirre-Miron

Court: US Court of Appeals for the Third Circuit

Docket: 19-3134

Opinion Date: February 23, 2021

Judge: Porter

Areas of Law: Criminal Law

Aguirre-Miron pleaded guilty to child-pornography offenses: three counts of production, 18 U.S.C. 2251(a), (e); one count of receipt, 18 U.S.C. 2252(a)(2), (b)(1); and one count of possession, 18 U.S.C. 2252(a)(4)(B), (b)(2). The district court adopted the calculations from the PSR. The Sentencing Guidelines require the grouping of certain closely related counts. The PSR grouped Aguirre-Miron’s receipt and possession counts but did not group Aguirre-Miron’s production counts; nor did it group the production counts with the receipt and possession counts. It listed four groups of offenses, determined that the offense level for the production counts was 38 and the offense level for the receipt and possession counts was 40, including a five-level enhancement under U.S.S.G. 2G2.2(b)(5) because Aguirre-Miron “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor” when he produced child pornography. With Aguirre-Miron’s combined offense level and other enhancements and reductions, the PSR offense level was capped by the Sentencing Guidelines at 43. The resulting Guidelines sentence was 130 years’ imprisonment. The court granted a downward variance, which produced a Guidelines range of 360 months to life imprisonment and sentenced Aguirre-Miron to 360 months’ imprisonment. The Third Circuit vacated, holding that the court miscalculated the Sentencing Guidelines range by not grouping the production counts with the receipt and possession counts under U.S.S.G. 3D1.2(c), which was a plain error that affected Aguirre-Miron’s substantial rights.

Harley v. Wilkinson

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1632

Opinion Date: February 22, 2021

Judge: Barbara Milano Keenan

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

After plaintiff was convicted in 1993 for misdemeanor assault and battery of a family member, he was prohibited for life under 18 U.S.C. 922(g)(9) from possessing a firearm unless he obtains a pardon or an expungement of his conviction. Plaintiff filed suit seeking a declaration that section 922(g)(9) is unconstitutional as applied to him. The Fourth Circuit affirmed the district court's grant of summary judgment to defendants, holding that section 922(g)(9) is constitutional as applied to plaintiff. The court applied a two-prong approach in considering as-applied Second Amendment challenges. First, the court assumed without deciding that domestic violence misdemeanants are entitled to some degree of Second Amendment protection. Second, the court applied intermediate scrutiny to consider plaintiff's challenge. Applying United States v. Staten, 666 F.3d 154 (4th Cir. 2011), which rejected an as-applied Second Amendment challenge to section 922(g)(9), the court concluded that the evidence showed "a reasonable fit" between the statute and the substantial governmental objective of reducing domestic gun violence. In reaching this conclusion, the court adopted the approach of its sister circuits and declined to read into the statute an exception for good behavior or for the passage of time.

In re: Dearnta Thomas

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-292

Opinion Date: February 23, 2021

Judge: Richardson

Areas of Law: Criminal Law

Movant seeks authorization to file a successive 28 U.S.C. 2255 application based on the holding in Davis v. United States, 139 S. Ct. 2319 (2019), that the residual clause of 18 U.S.C. 924(c)'s crime-of-violence definition was unconstitutionally vague. The Fourth Circuit joined its sister circuits in holding that Davis applies retroactively to cases on collateral review. The court also found that movant has stated a plausible claim for relief that warrants review by a district court. Accordingly, the court granted the motion.

United States v. Burnley

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-4176

Opinion Date: February 19, 2021

Judge: Roger L. Gregory

Areas of Law: Criminal Law

The Fourth Circuit vacated defendant's sentence for conspiracy to possess, with intent to distribute, 500 grams or more of methamphetamine. The court found that the district court's explanation for applying the leadership enhancement under USSG 3B1.1(b) precludes meaningful appellate review. The court found no basis in the record for concluding that the district court considered the seven factors for sentencing defendant as a "manager" or "supervisor." In this case, the district court cited no facts regarding defendant's instruction for another person to collect money on his behalf or for others to move money for him from prison. Furthermore, it was unclear as to what evidence the district court was referring to and why it supported the conclusion that defendant managed or supervised his sister to accept money on his behalf from prison. Therefore, the court concluded that the district court committed procedural error under United States v. Chambers, 985 F.2d 1263, 1267 (4th Cir. 1993). Finally, the court concluded that the district court did not clearly err by determining that defendant recklessly created a sufficiently substantial risk of death or serious bodily injury to another person. Therefore, the district court did not err by applying a sentencing enhancement for reckless flight under USSG 3C1.2. The court remanded for further fact-finding and resentencing.

United States v. Mallory

Court: US Court of Appeals for the Fourth Circuit

Dockets: 18-1811, 18-1812, 18-1813

Opinion Date: February 22, 2021

Judge: Diana Jane Gribbon Motz

Areas of Law: Criminal Law

The Fourth Circuit affirmed the district court's judgment in an action where defendants were found liable by a jury for multiple violations of the False Claims Act (FCA). The district court denied defendants' post-trial motions for judgment as a matter of law and for a new trial, and entered judgment against all three defendants. The court concluded that defendants offered no argument or evidence that required the district court to grant them judgment as a matter of law. Rather, based on all of the evidence presented at trial, a reasonable jury could conclude that defendants willfully paid commissions to independent contractors and, accordingly, that they knowingly violated the Anti-Kickback Statute. The court rejected defendants' contention that commissions to salespeople can never constitute kickbacks under the Anti-Kickback Statute. The court explained that no language in the statute so provides and federal appellate courts have frequently, and indeed invariably, upheld Anti-Kickback Statute violations based on commission payments to third parties. The court rejected defendants' claims of instructional error, and concluded that the district court did not abuse its discretion by excluding the testimony of certain experts. Finally, the court concluded that the district court did not err in granting the prejudgment writ of attachment.

In Re: Travis Harris

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-51045

Opinion Date: February 25, 2021

Judge: Per Curiam

Areas of Law: Criminal Law

Movant seeks authorization to file a successive 28 U.S.C. 2255 motion challenging his conviction and sentence under 18 U.S.C. 924(c)(1)(A) for using and possessing a destructive device during and in relation to a crime of violence. Movant argues that his conviction should be vacated because the predicate offense for his conviction, arson in violation of 18 U.S.C. 844(i), qualified as a "crime of violence" only under the residual clause in section 924(c)(3)(B), which pursuant to United States v. Davis, 139 S. Ct. 2319, 2325–26, 2336 (2019), is unconstitutionally vague. The Fifth Circuit concluded that movant has made a sufficient showing of possible merit to warrant a fuller exploration by the district court, and ordered that the motion be granted.

United States v. DeJean

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30865

Opinion Date: February 23, 2021

Judge: Stuart Kyle Duncan

Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's conviction of mail fraud and making false statements to a bank. In this case, defendant, as justice of the peace, exploited his position to steal thousands of dollars in public funds, which he used for casino gambling. The court rejected defendant's challenge to the district court's decision to seat a juror who, defendant claims, was biased against gamblers. Rather, the court deferred to the district court's broad discretion in assessing the juror's impartiality. In this case, the juror's negative views about gambling implicate nothing like the kind of structural bias against all criminal defendants. Furthermore, the district court affirmatively found the juror's views on gambling (unlike other jurors who were dismissed for cause on that ground) would not prevent her from being impartial.

United States v. Kim

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-51024

Opinion Date: February 19, 2021

Judge: James L. Dennis

Areas of Law: Copyright, Criminal Law

After defendant pleaded guilty to one count of criminal copyright infringement, the district court sentenced defendant to 46 months' imprisonment and ordered him to pay restitution to the copyright owner, Scientific Games Corporation. After determining that defendant's appeal waiver did not bar defendant's challenge, the Fifth Circuit vacated the restitution order, concluding that the government failed to carry its burden of properly establishing the number of infringing items placed into commerce that defendant was responsible for and the resulting harm to Scientific Games in terms of lost net profit. The court remanded for the district court to reanalyze the government's evidence and to determine the number of counterfeit Life of Luxury (LOL) motherboards actually sold and put into the market to compete with legitimate LOL games and the net profit lost by Scientific Games as a result. The court dismissed defendant's challenge to the imposition of a sentencing enhancement because it is barred by his appeal waiver.

United States v. Nora

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-31078

Opinion Date: February 24, 2021

Judge: Stephen Andrew Higginson

Areas of Law: Criminal Law

The Fifth Circuit reversed defendant's convictions for conspiracy to commit health care fraud (Count 1); conspiracy to pay or receive illegal health care kickbacks (Count 2); and aiding and abetting health care fraud (Count 27). Defendant was tried and convicted alongside five codefendants for his involvement in a large home health care fraud and kickback scheme in connection with his employment at Abide Home Health Care Services. The court concluded that, even under the court's extremely deferential review of jury verdicts, there was insufficient evidence put forth at trial for a rational juror to conclude beyond a reasonable doubt that defendant acted with the knowledge that his conduct was unlawful. Therefore, the Government failed to prove that defendant acted "willfully" with respect to each count. In this case, there was insufficient evidence proving that defendant knew that Abide was defrauding Medicare, through "ghosting," its use of house doctors, or otherwise (Count 1); that defendant knew that Abide's referral payments constituted illegal kickbacks (Count 2); or that defendant had involvement with EvLa's treatment at Abide (let alone that he knew she was not actually homebound) (Count 27). The court vacated defendant's sentence.

Bethel v. Jenkins

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-3392

Opinion Date: February 25, 2021

Judge: Eric L. Clay

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Bethel is serving a capital sentence at CCI. Following Ohio Department of Rehabilitation and Corrections Policy, CCI officials implemented a policy prohibiting “orders for printed material placed by third parties through unapproved vendors.” An inmate’s family or friends could only place orders on their behalf through an approved vendor; orders from unapproved vendors had to “be initiated by the inmate and approved by CCI.” If an inmate received a package from an unapproved source, the inmate could return the package at the inmate’s expense or have it destroyed. Officials withheld books from Bethel that were not ordered by Bethel; he received notices explaining why the books were withheld and offering him the option of having the books returned or destroyed. Bethel later learned that other inmates had received religious books, which were initially withheld for being ordered by a third party but were exempted after being reviewed by the chaplain. Bethel filed suit under 42 U.S.C. 1983. The Sixth Circuit affirmed the dismissal of an Establishment Clause claim but remanded Free Speech and Procedural Due Process claims and later affirmed summary judgment in favor of the defendants. The “publisher only” policy was neutral and supported by the legitimate penological interest of preventing the entry of contraband into the prison; there were reasonable alternative means for Bethel to acquire these books. Bethel received sufficient process following the withholding of his books through written notice, the grievance procedure, and the ability to return the book. The defendants were entitled to qualified immunity in their individual capacities because they did not violate Bethel’s clearly established rights under the First and Fourteenth Amendments.

Miles v. Jordan

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-5340

Opinion Date: February 24, 2021

Judge: Richard Allen Griffin

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

In March 2005, Miles was indicted for murder, wanton endangerment, tampering with physical evidence, and being a persistent felony offender. Eight months later, law enforcement sent a hat recovered at the crime scene to a lab for DNA testing. The court granted the prosecutor several continuances, waiting for the DNA results for the hat. Miles himself filed an unsuccessful speedy-trial motion, arguing that the DNA testing was a “stall tactic.” The hat was negative for Miles’ DNA. Miles’s trial began 21 months after he was indicted. On appeal, the issues concerned a gun, found under Miles’s mattress but not linked to the shootings, and Miles’s nicknames. Miles appealed to the Kentucky Supreme Court, arguing that the 21-month delay between his indictment and trial violated his Sixth Amendment speedy trial rights. Applying the four-factor test established by the U.S. Supreme Court, that court affirmed his convictions. In Kentucky habeas proceedings, Miles argued that his trial counsel was ineffective for failing to object to the prosecutor’s references to the gun and to the prosecutor’s use of his nicknames. The Kentucky Supreme Court held that there was not a reasonable probability that the verdicts would have been different if his counsel had objected to the gun or nickname references. The Sixth Circuit affirmed the denial of Miles’s petition for federal habeas relief; the district court appropriately deferred to the Kentucky Supreme Court’s reasonable resolutions of Miles’s claims.

Reedy v. West

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-1367

Opinion Date: February 24, 2021

Judge: Guy

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Reedy, a Michigan prisoner, was a 47-year-old African American, serving a DUI sentence. His cellmate, Hensley was a 53-year-old much larger Caucasian, convicted of first-degree criminal sexual conduct involving a child. Reedy claims that in June 2016, he told Assistant Resident Unit Supervisor Wade about Hensley's threats against his life. In July, Reedy told prison counselor West “that [his] bunkie had threatened [him] and we needed to move.” West allegedly responded, “I’ll get back with you,” but never did. Days later, Reedy and Hensley went together to West’s office. Reedy claims he “reiterate[d] [his] fear” West allegedly replied, Hensley "ain’t going to do nothing.” West claims Reedy remained silent, while Hensley stated, “You guys got to move this motherfucker” or “whatever happens . . . is going to be onto [you].” West claims that he told the men to work it out and that Reedy returned later and said that “everything was good.” The next morning, Hensley used a softball-sized rock in a laundry bag to beat Reedy while he was sleeping. In Reedy’s Eighth Amendment “failure to protect" lawsuit under 42 U.S.C. 1983, the district court dismissed the other prison officials and, with respect to West, concluded that there was insufficient evidence for a reasonable jury to find in favor of Reedy as to both an objective, substantial risk of serious harm to Reedy before the assault and that West was deliberately indifferent to that risk. The Sixth Circuit affirmed. Viewing the record in the light most favorable to Reedy, he has not created a triable issue of fact to support an Eighth Amendment failure-to-protect claim.

United States v. Kimball

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-5682

Opinion Date: February 25, 2021

Judge: Per Curiam

Areas of Law: Civil Rights, Communications Law, Criminal Law

In 2004, Kimball was convicted of multiple drug-trafficking, weapons, money-laundering offenses, soliciting murder, witness tampering, and obstruction of justice. He was sentenced to two consecutive terms of life imprisonment plus 15 years. The Sixth Circuit affirmed. In April 2020, Kimball sought compassionate release, asserting that there were extraordinary and compelling reasons warranting compassionate release because he is at high risk of severe illness or death from COVID-19 based on his age (67) and medical conditions (hypertension, heart problems, high cholesterol, and gout) and that the 18 U.S.C. 3553(a) factors weighed in favor of release. The Sixth Circuit affirmed the denial of relief, rejecting Kimball’s argument that the time he has already served—approximately 17 years—is sufficient to serve the section 3553(a) goals because his offense did not involve any “actual violence” and he is statistically unlikely to re-offend based on his age. The court noted that when it affirmed his effective life sentence, he was the “undisputed kingpin and mastermind” of a “massive cocaine-trafficking conspiracy.” The district court’s order noted that its decision rested at least in part on the section 3553(a) factors; courts may deny relief under those factors “even if 'extraordinary and compelling’ reasons would otherwise justify relief.” Even if the district court “mistakenly limited itself to the commentary’s list of extraordinary and compelling reasons," that would not entitle him to relief.

Mejia v. Pfister

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2720

Opinion Date: February 19, 2021

Judge: Scudder

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Illinois inmate Mejia sued correctional officials under 42 U.S.C. 1983, challenging his filthy cell conditions and constant hallway lighting that prevented him from sleeping. His primary claim survived dismissal and summary judgment and proceeded to trial. The jury returned a defense verdict. Mejia had asked the district court, six times, to appoint counsel. Each time the court denied the request, reasoning that Mejia had demonstrated through his many filings that he understood his burden of proof and was capable of assembling evidence and marshaling arguments to support his contention that the Pontiac Correctional Center's conditions of confinement violated the Eighth Amendment. The Seventh Circuit affirmed. The district court correctly observed that Mejia had an extensive litigation history, including at least one prior case going to trial, albeit with counsel. Mejia had difficulty with the discovery process, but it was within the judge’s discretion to overlook his slips and help him rather than try to recruit counsel. The court observed, during the pretrial conference, Mejia’s ability to comprehend and address the facts and issues pertinent to his Eighth Amendment claim. There was no abuse of discretion; the fact that some trial witnesses testified by videoconference does not change the analysis.

United States v. Anderson

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2361

Opinion Date: February 19, 2021

Judge: Diane Pamela Wood

Areas of Law: Criminal Law

Anderson furnished heroin to Sublett every month; Sublett cut the heroin with sleeping-aid medication and used retail-level sellers, including Ray, and paid Anderson after selling the heroin. Occasionally Sublett also stored large quantities of heroin for Anderson. Anderson provided Sublett with “Kansas City” heroin, which Ray sold to his regular customer, Buchanan. Buchanan overdosed. Paramedics revived Buchanan and took him to the hospital. After his release, Buchanan told Ray that he had overdosed on the "Kansas City." Anderson, Sublett, Ray, and others were charged under 21 U.S.C. 846. Count Two charged Anderson with aiding and abetting the distribution of heroin to Buchanan that resulted in his overdose (section 841(a)(1)). Anderson’s codefendants pleaded guilty. Anderson was convicted on both charges. For the serious-bodily-injury enhancement, the jury responded yes to: “With respect to Count One, Count Two, or both … the government has proven beyond a reasonable doubt Ian Buchanan suffered serious bodily injury and that the serious bodily injury … resulted from the use of heroin distributed by” Anderson. The court calculated a guidelines range of 360 months to life, considering the serious-bodily-injury finding and a two-level “leadership” enhancement, but ultimately imposed a below-guidelines sentence of 300 months. The Seventh Circuit vacated the distribution conviction, which was based on an aiding-and-abetting theory of liability that was unsupported by the evidence. To establish under an aiding-and-abetting theory, the government had to prove that Anderson “affirmative[ly] act[ed] in furtherance of” Ray’s sale to Buchanan and intended to facilitate the commission of that sale. It is impossible to tell from the jury’s verdict whether the serious-bodily-injury enhancement applied only to the flawed distribution conviction, only to the unchallenged conspiracy conviction, or to both.

United States v. Ford

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-3486

Opinion Date: February 22, 2021

Judge: HAMILTON

Areas of Law: Criminal Law

In August 2018, Ford, Johnson, and Foster committed several Milwaukee armed robberies, in different combinations. On August 22, Johnson provided a handgun; Foster and Ford assaulted a taxi driver, then fled with Johnson, to split the proceeds. On August 23, officers located the getaway car near a Petro Mart where Johnson and Foster had committed an armed robbery that morning. The car contained driver’s licenses of three taxi driver victims; a pair of flip-flops consistent with those worn by Foster during the Petro Mart robbery; and identification cards and a prescription belonging to Johnson. On August 25, surveillance cameras recorded Johnson and Ford entering a B.P. station., Johnson approached the cashier, who stood behind ballistic-proof glass, pointed the handgun, and demanded cash. The cashier refused. Ford had exited the store. The cashier activated the door lock. Ford, unable to re-enter, fled. Johnson eventually escaped by another exit. Johnson was arrested after a high-speed chase. Officers recovered a loaded handgun from her pocket, with distinctive characteristics matching those of the handgun seen in surveillance camera recordings featuring the three. Ford pleaded guilty to two counts of Hobbs Act robbery, 18 U.S.C. 1951(a) and one count of brandishing a firearm to further a crime of violence, section 924(c)(1)(A)(ii) for the attempted armed robbery of the B.P. The court sentenced Ford to 114 months' imprisonment: 30 months (a 35 percent downward departure from the guideline range) for the Hobbs Act counts, and a mandatory minimum consecutive sentence of 84 months for brandishing a firearm to further a crime of violence. The Seventh Circuit affirmed. The district court did not err by inferring that Ford was accountable for Johnson’s use of the firearm and imposing a six-level enhancement under U.S.S.G. 2B3.1(b)(2)(B).

United States v. Joiner

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-2361

Opinion Date: February 23, 2021

Judge: Kirsch

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Joiner is a 31‐year‐old prisoner serving an eight-year sentence at U.S. Penitentiary Marion for a drug crime. In July 2020, amid the COVID‐19 pandemic, Joiner sought compassionate release under 18 U.S.C. 3582(c)(1)(A), citing “extraordinary and compelling reasons,” self‐reported hypertension, a body mass index (BMI) of 28.9 (the “over‐weight” category), and his skin color. He argued that Black Americans have disproportionately suffered from COVID‐19 because “society has put them in worse positions.” He cited a CDC article to argue that Black people in the U.S. face a higher risk of hospitalization and death from COVID‐19, and other articles to contend that, even though skin color should not affect health outcomes from infectious diseases, “our society” delivers subpar health care to “people with black skin,” even when controlling for class, comorbidities, and access to health insurance. The government contended that Joiner’s medical records did not contain evidence of hypertension and that his BMI did not place him at “high risk” for severe COVID‐19 complications. The district court ruled that Joiner did not present extraordinary and compelling reasons for release, without comment on Joiner’s racial disparity argument. The Seventh Circuit affirmed. The cited articles identify multiple societal factors that are not relevant to Joiner’s individual situation in federal prison. Without any factual basis tying those broader societal concerns to Joiner’s individual situation, the district court was not required to address the argument.

United States v. Burgee

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-3034

Opinion Date: February 24, 2021

Judge: Lavenski R. Smith

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction for failure to register under the Sex Offender Registration and Notification Act (SORNA). The court followed the precedent established in United States v. Hill, 820 F.3d 1003 (8th Cir. 2016), and employed the circumstance-specific approach to the application of 34 U.S.C. 20911(7)(I). The court concluded that the district court used reliable evidence in finding the requisite facts by putting the government's proof through the rigors of the admissibility standards of the rules of evidence in a contested hearing. The court also concluded that section 20911(7)(I) is not void for vagueness as applied to defendant.

United States v. Flax

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-3547

Opinion Date: February 25, 2021

Judge: Bobby E. Shepherd

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction for conspiracy to distribute heroin, conspiracy to possess firearms in furtherance of a drug trafficking crime, and discharging a firearm in furtherance of a drug trafficking crime. The court concluded that the evidence was sufficient to support defendant's drug and firearm conspiracy convictions and his conviction for discharging a firearm in furtherance of a drug trafficking crime. The court also concluded that, although the district court erred by allowing an officer to impermissibly opine on an ultimate issue when she testified that the 1-9 Block Dipset Gang is a "drug trafficking organization," there was no plain error because defendant could not show that the error affected his substantial rights.

United States v. Halter

Court: US Court of Appeals for the Eighth Circuit

Docket: 20-1219

Opinion Date: February 24, 2021

Judge: Erickson

Areas of Law: Criminal Law

The Eighth Circuit affirmed the district court's denial of defendant's motion to suppress and his sentence for being a felon in possession of a firearm. The court concluded that the seizure of defendant was justified under the community caretaker exception where law enforcement received a report that a little girl's mother heard her daughter screaming and crying during a phone call with the girl's father; the mother also reported that the father had a firearm and threatened to kill anyone else who tried to come get the child; and, because defendant left his house before officers could respond, they were justified in effecting a traffic stop on him in order to conduct a welfare check on the girl. The court explained that the escalation of the encounter occurred only because defendant chose to escalate it by his own threatening conduct in response to the welfare check, and the officers' response was reasonable. The court also concluded that defendant's sentence was reasonable where the district court properly calculated the guidelines range and weighed the relevant 18 U.S.C. 3553(a) factors.

United States v. Marin

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-3214

Opinion Date: February 24, 2021

Judge: Sarah E. Pitlyk

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction for possession with intent to distribute a controlled substance, possession of a firearm in furtherance of a drug trafficking crime, and conspiracy to distribute a controlled substance. The court concluded that the evidence was sufficient to support defendant's conviction for possession of a firearm in furtherance of a drug trafficking crime. The court also concluded that officers had a reasonable, articulable suspicion to justify defendant's traffic stop and the stop was not impermissibly extended. In this case, defendant was questioned about his erratic driving and his presence on someone else's farm; defendant offered implausible explanations and manifested excited speech and mannerisms; and the officer was justified in prolonging the stop in order to question defendant further and to call another officer to investigate whether defendant was under the influence of drugs.

United States v. Moreno

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-3483

Opinion Date: February 24, 2021

Judge: Erickson

Areas of Law: Criminal Law

The Eighth Circuit affirmed the district court's denial of defendant's motion to suppress evidence seized as a result of a protective frisk. The court concluded that the officer performed a lawful, protective search based on reasonable articulable suspicion that defendant may have been armed. In this case, the officer's targeted, protective search was sufficiently limited to dispel his concerns that the bulge under defendant's clothing may have been a weapon.

United States v. Shoulders

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2832

Opinion Date: February 25, 2021

Judge: Steven M. Colloton

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's 300 month sentence imposed after he pleaded guilty to second-degree murder within Indian country. The court need not address whether the district court erred by departing under USSG 5K2.1 and 5K2.6, because the district court said that it would impose the same sentence by varying upward under 18 U.S.C. 3553(a). Furthermore, defendant did not object to the mistaken statements of fact at issue, and he cannot show a reasonable probability that they affected the outcome of the proceeding. The court also concluded that there is no reasonable probability that the district court would have arrived at a different sentence if the defense had clarified the identities of the minivan occupants and the family relationships during the hearing. The district court also discussed the section 3553(a) factors at some length and its explanation was adequate. Finally, the court concluded that defendant's sentence is substantively reasonable and the district court did not abuse its discretion.

United States v. Wickman

Court: US Court of Appeals for the Eighth Circuit

Docket: 20-1186

Opinion Date: February 25, 2021

Judge: Bobby E. Shepherd

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's 192 month sentence imposed after he pleaded guilty to one count of possession of methamphetamine with the intent to distribute. The court concluded that defendant's sentence was substantively reasonable where the district court varied downward after engaging in a measured and thoughtful discussion of the Guidelines and their applicability to defendant's offense and personal circumstances. The court also concluded that, while a district court may choose to deviate from the Guidelines because of a policy disagreement, it is not required to do so. Therefore, the district court did not abuse its discretion in sentencing defendant.

United States v. Zephier

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2262

Opinion Date: February 25, 2021

Judge: Stras

Areas of Law: Criminal Law

The Eighth Circuit reversed defendant's conviction for aggravated sexual abuse. The court concluded that, even if defendant invokes the right to counsel, the law enforcement agent could still continue to make limited and focused inquires attendant to a legitimate police procedure if they are not likely to be perceived as calling for an incriminating response. In this case, the agent's statement fell into this category and he simply presented the search warrant to defendant, telling him what it allowed him to do. The court explained that it was, in other words, a "statement of fact" about a legitimate police procedure. However, the court concluded that the district court's decision -- admitting expert testimony about the typical behaviors of sexual assault victims and refusing to admit testimony about whether the victim had been sexually assaulted before -- improperly prevented defendant from presenting his complete defense and showing that an earlier sexual assault was the source of the victim's trauma. The court remanded for a new trial.

United States v. Olson

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-16591

Opinion Date: February 22, 2021

Judge: Per Curiam

Areas of Law: Criminal Law

The Ninth Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 motion to vacate his sentence based on the ineffective assistance of counsel during plea negotiations that took place before defendant was formally accused of any crime. Traditionally, the panel explained that the Sixth Amendment has been interpreted to mean that the right to counsel attaches when a criminal defendant is formally charged. Defendant asked the panel to reexamine the traditional approach to attachment of the Sixth Amendment right to counsel in order to recognize that the right to counsel may attach before there has been a formal charge. The panel concluded that it is not in a position to do so, however, because it cannot overrule binding circuit precedent. The panel also concluded that this is not an appropriate case to ask for an en banc court to consider overruling United States v. Hayes, 231 F.3d 663, 669–70 (9th Cir. 2000) (en banc), since this defendant was appointed counsel, and the record indicates that defendant's counsel was not ineffective.

United States v. Benton

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-6023

Opinion Date: February 23, 2021

Judge: Carolyn Baldwin McHugh

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Ronald Benton was convicted by jury of one count of possession of a firearm by a person convicted of a misdemeanor crime of domestic violence. The district court imposed a sentence based on the penalty found in 18 U.S.C. 924(a)(2). Benton challenges his conviction on multiple grounds. The Tenth Circuit found that each of those grounds was predicated on accepting his proposed interpretation of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). Specifically, Benton argued that, under Rehaif, the government was required to prove not only that he knew he was a domestic violence misdemeanant, but also that he knew that status prohibited him from possessing a firearm. Benton contended his conviction had to be vacated because the jury was not instructed it must find he knew he was prohibited from possessing a firearm, and because the government presented insufficient evidence concerning his knowledge that he was so prohibited. To this, the Tenth Circuit rejected Benton’s interpretation of Rehaif, holding that in a prosecution under sections 922(g) and 924(a)(2), the government need not prove a defendant knew his status under section 922(g) prohibited him from possessing a firearm. Instead, the only knowledge required for conviction was that the defendant knew: (1) he possessed a firearm; and (2) had the relevant status under section 922(g) at the time of his possession. Because the Court rejected Benton’s proposed interpretation of Rehaif, the Court further rejected his challenges to the jury instructions and the sufficiency of the evidence.

United States v. Khan

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-8051

Opinion Date: February 25, 2021

Judge: Mary Beck Briscoe

Areas of Law: Constitutional Law, Criminal Law

Defendant Nabeel Aziz Khan (“Nabeel”) and his brother, Defendant Dr. Shakeel Kahn were convicted by a Wyoming jury on drug trafficking and money laundering charges. Defendants were tried together; they appealed separately, but because their appeals raised several overlapping issues, the Tenth Circuit addressed both appeals in this opinion. In 2008, Dr. Kahn started a medical practice in Ft. Mohave, Arizona. Later that year, Nabeel arrived in Arizona and began assisting with managing Dr. Kahn’s practice. After Nabeel’s arrival, Dr. Kahn’s practice shifted towards pain management. Dr. Kahn regularly prescribed patients various controlled substances. The prescriptions he wrote aligned closely with what patients were able to pay, rather than the patients’ medical need; when patients were prescribed more pills, Dr. Kahn charged more for his medical services, and when patients could not afford the price of the prescription, Dr. Kahn prescribed fewer pills, or withheld a prescription entirely. The price of prescriptions also closely tracked the “street price” of the pills. In addition to shifting towards pain management, Dr. Kahn’s practice also shifted to a primarily “cash-only” basis, although he also accepted payment in personal property, including firearms. Many of Dr. Kahn’s patients sold pills so they could afford their prescriptions. Beginning in late 2012, pharmacies in the Ft. Mohave area began refusing to fill prescriptions issued by Dr. Kahn. In 2015, he opened a second practice in Casper, Wyoming. During that time, Dr. Kahn continued to travel to Arizona to see patients about once per month; other patients travelled to Wyoming to see Dr. Kahn. Nabeel primarily resided at Dr. Kahn’s Arizona residence, and acted as office manager for the Arizona office. Dr. Kahn’s wife, Lyn Kahn, acted as office manager for the Wyoming office. In 2016, the government investigated Dr. Kahn's prescribing practices, which lead to a search warrant executed on Dr. Kahn's Wyoming residence, his Arizona residence, and a separate business he and his wife owned in Wyoming, "Vape World." Reviewing defendants' challenges, the Tenth Circuit concluded the trial court committed no reversible errors and affirmed defendants' convictions.

United States v. Mora

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2097

Opinion Date: February 24, 2021

Judge: Carson

Areas of Law: Constitutional Law, Criminal Law

At issue in this appeal was whether a police search of defendant Mathias Mora's home violated the Fourth Amendment. Officers responded to a 911 call reporting that dozens of people exited the back of a tractor trailer behind a supermarket. When officers arrived, the trailer was gone. But officers found fourteen people lacking identification; none of the captured passengers suggested that the driver, or anyone else, took any passengers to another location. Officers soon discovered a trailer matching the 911 caller’s description in a nearby Walmart parking lot. Officers opened the trailer’s rear doors to find it empty, except for a bottle apparently containing urine and the smell of body odor. Officers did not open the locked cab door. Officers learned the trailer was registered to Defendant, proceeded to his home, and placed Defendant and his wife under arrest. Mrs. Mora denied the officers permission to search the home. Even so, officers conducted a warrantless search (protective sweep) of the home after consulting with the U.S. Attorney’s Office “to ensure the safety of agents” and “the safety of other potential undocumented immigrants.” Although they did not find any people, officers noticed what they believed to be a gun safe and ammunition containers. Officers also learned that Defendant was a felon, which would make him a prohibited possessor. The government obtained a warrant to search Defendant’s home for evidence of alien smuggling and prohibited possession of a firearm or ammunition. A subsequent search turned up both firearms and ammunition. Defendant ultimately pled guilty to two counts of alien smuggling and one count of being a felon in possession of a firearm, for which he was sentenced to 32 months for smuggling and 48 months for gun possession, all to run concurrently. Defendant appealed the denial of his suppression motion, which related only to his felon in possession conviction. Finding officers lacked probable cause to search Defendant's home, the district court's suppression order was reversed and the matter remanded for further proceedings.

Clark v. Commissioner, Alabama Department of Corrections

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-11443

Opinion Date: February 25, 2021

Judge: Charles R. Wilson

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Eleventh Circuit affirmed the district court's denial of habeas relief to petitioner, who was convicted of murder and sentenced to death. Petitioner claims that since he was restrained without adequate and on-the-record justification by the district court, his trial counsel should have objected and that the failure to object constituted inadequate assistance. The court concluded that, even if Martinez v. Ryan, 566 U.S. 1 (2012), could excuse petitioner's procedural default, he has failed to show actual prejudice under Strickland v. Washington, 466 U.S. 668 (1984), and therefore has not presented a "substantial claim" that his trial counsel rendered ineffective assistance. In this case, given the strong evidence of his guilt, there is no reasonable probability that the jury seeing petitioner in shackles affected his conviction. Nor is there any reasonable probability that seeing petitioner in shackles affected the jury's decision to recommend the death penalty.

United States v. Abovyan

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-10676

Opinion Date: February 22, 2021

Judge: Hull

Areas of Law: Criminal Law

The Eleventh Circuit affirmed defendant's convictions and sentences for conspiring to commit healthcare fraud, conspiring to possess with intent to dispense controlled substances, and seven counts of unlawfully dispensing a controlled substance. The court held that the evidence was sufficient to support defendant's convictions. The court also held that the district court adequately instructed the jury as to the elements of a criminal conspiracy and that its object was healthcare fraud; the district court did not abuse its discretion in refusing to give defendant's requested instruction because it was not a correct statement of the law; and the district court's jury instructions accurately stated the law. In regard to defendant's challenges to his sentences, the court held that the district court did not err in calculating defendant's advisory guidelines range or abuse its discretion in sentencing him; the district court did not clearly err in reaching its loss findings; and the district court's error in sentencing defendant on Count Two did not affect his substantial rights.

Vibe Ener v. Martin

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-12258

Opinion Date: February 22, 2021

Judge: William Holcombe Pryor, Jr.

Areas of Law: Civil Procedure, Criminal Law, Family Law

At issue in this appeal is whether the district court abused its discretion when it applied the fugitive disentitlement doctrine to dismiss plaintiff's action against defendant, the father of her two daughters. In this case, plaintiff left the United States against the orders of a Florida family court and could be arrested by Florida officials if she were to return to Florida. Plaintiff filed suit attacking the proceedings of the family court while remaining outside its jurisdiction. The Eleventh Circuit affirmed the district court's judgment, concluding that the district court did not abuse its discretion by applying the fugitive disentitlement doctrine to dismiss plaintiff's lawsuit. The court explained that because plaintiff remains a fugitive, her lawsuit collaterally attacks the very proceedings from which she absconded, and dismissal prevents her from using the judicial process only when it benefits her. The court denied as moot the motion to dismiss the appeal, the motion to strike part of the reply brief, and the motion to strike the appendix to the reply brief.

United States v. Scurry

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 18-3067

Opinion Date: February 19, 2021

Judge: Per Curiam

Areas of Law: Criminal Law, Legal Ethics

In an action challenging the voluntary and intelligent nature of appellant's plea as to certain drug and drug-related offenses, the DC Circuit concluded that the appointment of counsel was not in the interest of justice under the Criminal Justice Act given her unwaived and material conflict of interest. The court explained that, under controlling Supreme Court precedent, the only legally viable avenue for challenging the plea apparent on the record would have been for counsel to argue that her own and/or her husband's representation of appellant in the decision to plead guilty was constitutionally ineffective. In this case, the fact that counsel chose to pursue a challenge to appellant's guilty plea that was plainly foreclosed by precedent rather than the only potentially viable legal avenue recognized by case law—an ineffective assistance of counsel claim against herself and her spouse—presents an untenable direct and plain conflict of interest between attorney and client. Furthermore, counsel, when she re-inserted herself into appellant's case to file this Section 2255 motion, did not obtain any waiver of the conflict—even assuming a conflict like this is waivable at all. The court explained that counsel never advised appellant that, to be legally viable, a challenge to the voluntary and intelligent nature of his plea based on the suppression of the other wiretaps would require him to level an ineffective assistance of counsel claim aimed at her and/or her husband. Therefore, the court concluded that the conflict of interest persisted throughout and permeated counsel's representation of petitioner in these Section 2255 proceedings. The court reversed and remanded for the appointment of conflict-free counsel to assist with appellant's Section 2255 petition.

O.G. v. Superior Court

Court: Supreme Court of California

Docket: S259011

Opinion Date: February 25, 2021

Judge: Groban

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

The Supreme Court upheld Senate Bill 1391 as a permissible amendment to Proposition 57 and reversed the judgment in the case, holding that the Legislature acted within its authority. Proposition 57, which was passed in the November 2016 general election, allowed prosecutors to move to transfer some minors as young as fourteen years old from juvenile court to adult criminal court. Senate Bill 1391, enacted in 2018, amended Proposition 57 to prohibit minors under the age of sixteen from being transferred to adult criminal court. The court of appeal held that Senate Bill 1391 was invalid because it was inconsistent with Proposition 57. The Supreme Court reversed, holding that the amendment was fully consistent with and furthered Proposition 57's purposes of promoting rehabilitation of youthful offenders and reducing the prison population, and therefore, Senate Bill 1391 was a constitutional amendment to Proposition 57.

California v. Blanco

Court: California Courts of Appeal

Docket: E073176(Fourth Appellate District)

Opinion Date: February 24, 2021

Judge: Miller

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Jonathon Blanco was found guilty by jury of: (1) bringing a controlled substance into a penal institution; and (2) bringing a deadly weapon into a penal institution. The trial court found defendant had suffered a prior strike conviction and sentenced him to prison for a term of six years. On appeal, defendant raised two issues: (1) the trial court erred by failing to instruct the jury on the useable quantity element of the controlled substance offense; and (2) the trial court erred by denying his request for the jury to be instructed on the allegedly lesser included offense of possession of a controlled substance. The Court of Appeal found merit to defendant's first contention: because there was evidence suggesting defendant possessed less than a usable quantity of methamphetamine, the Court could not conclude beyond a reasonable doubt a rational jury would have rendered the same verdict if it had been properly instructed. Accordingly, the trial court’s error was prejudicial, and that portion of the judgment was reversed and remanded. Judgment was affirmed in all other respects.

California v. Figueras

Court: California Courts of Appeal

Docket: C089228(Third Appellate District)

Opinion Date: February 22, 2021

Judge: Vance W. Raye

Areas of Law: Constitutional Law, Criminal Law

Defendant Luis Figueras appealed the denial of his postjudgment petition to vacate his murder conviction pursuant to Penal Code section 1170.95. Counsel was appointed to represent defendant on appeal; Counsel filed a "Wende" brief, advising defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and the Court of Appeal received no communication from defendant. The appeal was then dismissed as abandoned. Counsel filed a petition for rehearing, which was granted. After supplemental briefing, the Court of Appeal again concluded the appeal was abandoned, and accordingly again dismissed the appeal. On rehearing, defendant contended the Wende procedure applied or should have applied to an appeal from an order denying a postconviction petition seeking relief pursuant to section 1170.95. Quoting California v. Cole, 52 Cal.App.5th 1023 (2020), the Court explained“Wende set forth the procedures to be followed during the defendant’s 'first appeal of right’—that is, during the direct appeal of his judgment of conviction and sentence. At this stage in criminal proceedings, a criminal defendant has a federal constitutional right to the effective assistance of counsel. ... [W]e reject the notion that the Constitution compels the adoption or extension of Wende procedures (or any subset of them) for appeals other than a criminal defendant’s first appeal of right because, beyond that appeal, there is no right to the effective assistance of counsel." The Court advised that once appointed counsel reviewed a defendant's record and finds no arguable issues to raise on appeal, counsel confirms defendant he has a right to file a supplemental brief, and the Court has the duty to address any issue defendant raises, but the Court may dismiss the appeal without conducting an independent review of the record. With no supplemental brief filed in this case, the Court dismissed the appeal as abandoned.

California v. Jackson

Court: California Courts of Appeal

Docket: D077095(Fourth Appellate District)

Opinion Date: February 23, 2021

Judge: Patricia D. Benke

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

Defendant Joseph Jackson sought a youth offender parole hearing under California Penal Code section 3051 as a result of his conviction in 1998 that included two counts of first degree murder with multiple special circumstances, which counts resulted in a sentence of two consecutive terms of life without the possibility of parole (LWOP). Defendant was 19 years old when he committed the homicides. In his October 2019 motion, defendant argued section 3051 violated his equal protection rights because he allegedly “is entitled to the same protections as any other person who violated the law at the same age whether it was murder without special circumstances, robbery, kidnapping or any other crime.” The trial court denied the motion, finding that defendant was statutorily ineligible for relief and that there was a rational basis for carving out from section 3051 offenders such as defendant who are convicted of first degree special circumstance murder and sentenced to LWOP. On appeal, defendant reasserted section 3051’s exclusion of persons over 18 years of age with LWOP sentences from its parole hearing provisions violated the constitutional guarantee of equal protection. The Court of Appeal independently concluded the carve out to section 3051 for offenders such as defendant serving a LWOP sentence for special circumstance murder was not an equal protection violation.

California v. Lyon

Court: California Courts of Appeal

Docket: C087289(Third Appellate District)

Opinion Date: February 24, 2021

Judge: Elena J. Duarte

Areas of Law: Constitutional Law, Criminal Law

Defendant Michael Lyon was found guilty by jury of six counts of eavesdropping on or recording confidential communications, and two counts of disorderly conduct. These counts arose from defendant's secret videotaping of prostitutes at his residence. Defendant argued on appeal that prostitutes, as a matter of law, have no reasonable expectation of privacy in their communications during sexual encounters at a client’s residence, and therefore the trial court erred in denying his motion to dismiss on those grounds. He further contended reversal was required due to instructional error, unlawful prosecution under the "Williamson" rule, and an unlawful probation search. Finding no reversible error, the Court of Appeal affirmed defendant's convictions.

Gerwig v. Gordon

Court: California Courts of Appeal

Docket: D076921(Fourth Appellate District)

Opinion Date: February 19, 2021

Judge: Dato

Areas of Law: Criminal Law, Government & Administrative Law

The issue this case presented was one of first impression for the Court of Appeal: whether a licensee can rebut an Evidence Code presumption that chemical blood tests were properly conducted, and the results are thus reliable. Plaintiff William Lee Gerwig crashed into the back of another vehicle at an intersection. He was thrown from his motorcycle and landed on the asphalt. California Highway Patrol Officer Jacob Rebelo responded to the scene and spoke with Gerwig while he was receiving medical attention. Based on his lethargic responses, the smell of alcohol, and his inability to recall the collision details, Rebelo suspected Gerwig was intoxicated. Rebelo arrested Gerwig for driving under the influence of alcohol (DUI), and watched while state-certified phlebotomist Francisco Moreno collected two vials of blood using a nonalcoholic swab to clean the site. Rebelo took the vials himself and entered them into evidence. Test results from Gerwig’s blood draw showed a blood-alcohol concentration (BAC) of .25 percent. At the Department of Motor Vehicle hearing, Gerwig’s counsel called an employee of Specimen Specialists of America, Inc. (SSI), the company that dispatched phlebotomist Moreno to draw Gerwig’s blood. Through the employee’s testimony, counsel demonstrated that certain SSI procedures were out of compliance with state regulations that govern blood test procedures. In particular, Moreno was functionally unsupervised and the manual that SSI provided for phlebotomists had not been approved by a physician and surgeon. After eliciting testimony to demonstrate these procedural failings, counsel argued that the test results could not be relied on due to SSI’s regulatory violations. The Court of Appeal concluded that licensees rebut the Evidence Code presumption only when they cast doubt on the integrity of the test. "It is not enough to show a violation of governing regulations that has only a tenuous connection to the accuracy of the results. Here, because plaintiff proved a regulatory violation with only an indirect and speculative relationship to the manner in which the blood test was conducted, and thus the reliability of the test results," the Court affirmed the order denying mandamus relief.

In re Hoze

Court: California Courts of Appeal

Docket: A158399(First Appellate District)

Opinion Date: February 25, 2021

Judge: Burns

Areas of Law: Criminal Law

Hoze began serving an indeterminate life sentence in 1980 after being convicted of attempted kidnapping, assault with a deadly weapon, robbery, vehicle theft, oral copulation, kidnapping with intent to commit robbery, and battery by means of force and violence. While incarcerated, he was convicted of weapon possession in 1981 and in 1987. Hoze was sentenced to two additional, consecutive prison terms (Thompson terms) for the in-prison offenses, totaling four years. In 2018, the Board of Parole Hearings granted Hoze parole under the Elderly Parole Program, Penal Code 3055, reasoning that based on “the positive adjustments you’ve made over the last decade . . . you no longer pose a risk of danger to society.” While in prison, Hoze participated in vocational training and self-help programs including Alcoholics Anonymous and Narcotics Anonymous. He received positive work reports. The Board explained, “you have matured” and that “your current age of 67 does reduce your recidivism risk.” Although the parole decision became final in September 2018, Hoze was not released immediately. The Board concluded that his parole grant did not excuse him from serving his Thompson terms, citing Penal Code section 1170.1(c). The court of appeal held that Hoze is not required to serve his sentences for in-prison offenses because a grant of parole under section 3055 supersedes section 1170.1(c).

In re Kavanaugh

Court: California Courts of Appeal

Docket: D076500(Fourth Appellate District)

Opinion Date: February 25, 2021

Judge: Judith McConnell

Areas of Law: Constitutional Law, Criminal Law

In 2016, California voters approved Proposition 57, the “Public Safety and Rehabilitation Act of 2016,” which amended the California Constitution to grant early parole consideration to persons convicted of a nonviolent felony offense. Petitioners Alexei Kavanaugh, Alberto Moreno, and Larry Smith were denied parole release under the procedures established by the parole regulations. In separate habeas corpus proceedings challenging the parole denials, the trial courts invalidated the parole regulations and ordered new parole consideration proceedings for the petitioners. The courts found the parole regulations were unconstitutional because they did not guarantee the assistance of legal counsel for potential parolees, they did not require in-person parole hearings, and they permitted individual hearing officers to make parole release decisions. According to the courts, the parole regulations conflict with section 32’s guarantee of parole consideration and violate prisoners’ procedural due process rights. The Court of Appeal concluded the parole regulations did not conflict with the constitutional guarantee of parole consideration or violate due process. "Section 32... vests CDCR with authority to adopt regulations in furtherance of its guarantee of parole consideration. CDCR acted within its mandate by enacting the parole regulations." Further, the Court concluded parole regulations required annual parole eligibility reviews, set forth sufficiently definite criteria governing parole release decisions, mandated a written statement of reasons for each parole release decision, and granted prisoners notice of the parole proceeding, an opportunity to submit a written statement to the Board of Parole Hearings (the Board), and the right to seek review of an adverse decision. "These features adequately safeguard against arbitrary and capricious parole release decisions." Orders granting the petitioners’ habeas corpus petitions were reversed.

People v. Barrios

Court: California Courts of Appeal

Docket: B302847(Second Appellate District)

Opinion Date: February 23, 2021

Judge: Wiley

Areas of Law: Criminal Law

Defendant was convicted of several crimes stemming from his hijacking of the victim's car, taking cash from the victim's wallet, and ordering the victim to drive them both to ATMs for more cash. At issue was whether defendant can be imprisoned for both robbery and for kidnapping to commit robbery. The Court of Appeal found People v. Beamon, (1973) 8 Cal.3d 625, controlling and concluded that the robbery offense was an incident to defendant's offense of kidnapping for robbery. The court explained that because the kidnapping had no objective but robbery, the robbery sentence and its enhancement must be stayed. Therefore, there was but one criminal "act" pursuant to Penal Code section 654. The court instructed the trial court to modify the abstract of judgment accordingly and to forward the corrected abstract to the Department of Corrections and Rehabilitation.

People v. Freeman

Court: California Courts of Appeal

Docket: A160437(First Appellate District)

Opinion Date: February 22, 2021

Judge: Tucher

Areas of Law: Criminal Law

In 2017, Freeman sustained convictions for assault with a deadly weapon and for buying or receiving a stolen vehicle. In June 2018, Freeman was released on Post Release Community Supervision (PRCS). Freeman’s PRCS was revoked and reinstated several times for possession of weapons and methamphetamine; a hit and run car accident; and possession of a replica handgun, a fixed blade knife, and a methamphetamine pipe. In February 2020, the Probation Department sought revocation on the ground that Freeman violated a PRCS condition requiring him to submit to electronic monitoring because he had stopped charging his monitor. The Department emphasized Freeman’s pattern of noncompliance despite multiple incarcerations. Defense counsel argued that the batteries malfunctioned and that any violation of the PRCS condition was not willful. Freeman’s probation officer confirmed that after Freeman was released from custody after the petition there had been ongoing issues regarding his failure to keep his monitor charged. The court imposed a 180-day jail term, ordering that after Freeman completed the jail term, he was to be released on PRCS. The court of appeal affirmed. Freeman’s appellate counsel filed a brief that raised no issue for appeal; the court concluded that Freeman is not entitled to an independent Wende review of the record. The issues Freeman raised in a pro se supplemental brief lack merit.

People v. Hardy

Court: California Courts of Appeal

Docket: A158179(First Appellate District)

Opinion Date: February 24, 2021

Judge: Stewart

Areas of Law: Criminal Law

Hardy fired a pistol in the direction of an occupied vehicle while standing in the street. An Oakland Police Department undercover officer observed Hardy firing a handgun, which was corroborated by a liquor store’s surveillance video and other evidence. Hardy was convicted by a jury and sentenced to 19 years and 8 months in prison on five counts. Most of Hardy’s sentence was based on his conviction for assault with a semi-automatic firearm (count 5). The only unambiguous, evidence that the firearm he fired was semi-automatic was an audio recording, sent to the police by a third-party service, “Shotspotter.” The court of appeal reversed Hardy’s count 5 conviction. The trial court erred in admitting the Shotspotter evidence without first conducting an evidentiary hearing to assess its scientific reliability pursuant to People v. Kelly; the error was prejudicial. The court rejected Hardy’s challenge to his conviction for willfully and maliciously discharging a firearm at an occupied vehicle. The preliminary hearing magistrate barred defense counsel’s cross-examination of the undercover officer about the officer’s location at the time he observed Hardy fire the weapon after the officer claimed official privilege under Evidence Code section 1040 to withhold the information; any error was harmless. The court did not commit an instructional error in responding to a jury question during deliberations about that count.

Souliotes v. California Victim Compensation Board

Court: California Courts of Appeal

Docket: B295163(Second Appellate District)

Opinion Date: February 19, 2021

Judge: Thomas L. Willhite, Jr.

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Court of Appeal affirmed the trial court's judgment, concluding that the trial court did not err in ruling that the Board is bound by the factual findings and credibility determinations that established the basis for the federal district court's grant of petitioner's habeas petition, but that the Board is not bound by the factual findings and credibility determinations from the district court's order allowing petitioner to pass through the Schlup gateway. The court concluded that a district court's Schlup gateway finding of "actual innocence" is not necessarily equivalent to a finding that the person is "factually innocent" under Penal Code section 1485.55, subdivision (a), thus requiring the Board to recommend payment of that person's claim without a hearing. The court also concluded that the factual findings and credibility determinations made by the district court in determining that the habeas petitioner could pass through the Schlup gateway is not necessarily binding on the Board in a hearing on a section 4900 claim. The court explained that the language of sections 4309, subdivision (b) and 1485.5, subdivisions (c) and (d), make clear that only those factual findings and credibility determinations relied upon by the district court to grant the writ of habeas corpus—as opposed to allowing the petitioner to pass through the Schlup gateway—are binding on the Board.

Colorado v. Thompson

Court: Colorado Supreme Court

Citation: 2021 CO 15

Opinion Date: February 22, 2021

Judge: Gabriel

Areas of Law: Constitutional Law, Criminal Law

The State challenged the trial court's order suppressing evidence seized from Defendant Asha Thompson's cell phone on Fourth Amendment grounds. Lakewood, Colorado police were dispatched to the Blue Sky Motel in response to a shooting. Upon their arrival, they found the victim, B.T., unresponsive in a motel room with a gunshot wound to her head. She was transported to the hospital but died a short time later. A witness to the shooting subsequently identified Thompson, who was known to Lakewood police, as the shooter, and the county court issued a warrant for Thompson’s arrest. police received an anonymous tip that Thompson was staying at a specified room in a different motel. They found and arrested Thompson there and then obtained a search warrant to allow them to search the room in which Thompson was arrested. As pertinent here, the warrant authorized the police to seize, among other things, cell phones and other electronic devices and provided that any seized cell phones “may be downloaded and examined either manually or forensically.” Based on this warrant, the police ultimately seized Thompson’s cell phone and sent it to a forensic laboratory where technicians subsequently unlocked it and downloaded all of the data on it. The State contended the independent source doctrine applied to the circumstances of this case, and therefore suppression was unwarranted. Because the Colorado Supreme Court concluded the State did not present sufficient evidence to establish the applicability of the independent source doctrine, the trial court's suppression order was affirmed.

State v. Ruiz-Pacheco

Court: Connecticut Supreme Court

Docket: SC20206

Opinion Date: March 2, 2021

Judge: Ecker

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed in part and reversed in part the judgment of the Appellate Court affirming Defendant's conviction of two counts of assault in the first degree as a principal and two counts of assault in the first degree as an accessory, holding that the Appellate Court erred insofar as it affirmed Defendant's assault conviction as to Kenneth Tucker. Defendant's convictions were based on a joint physical assault involving two perpetrators, Defendant and his brother, and two victims, Kenneth Tucker and Luis Rodriguez. On appeal, Defendant argued that his conviction of four assault violated his right to be free from double jeopardy under the federal constitution because he committed only one assault per victim, for a total of two assaults. The Supreme Court reversed the Appellate Court's judgment insofar as it affirmed Defendant's conviction as to Tucker, holding (1) the imposition of multiple punishments on Defendant for Tucker's assault violated the Double Jeopardy Clause; and (2) Defendant's criminal acts involving Rodriguez constituted two distinct courses of conduct for double jeopardy purposes.

People v. Birge

Court: Supreme Court of Illinois

Citation: 2021 IL 125644

Opinion Date: February 19, 2021

Judge: Anne M. Burke

Areas of Law: Criminal Law

Birge was convicted of burglary and arson, both Class 2 felonies carrying mandatory class X sentencing based on his criminal history, 730 ILCS 5/5-4.5-95(b). The Livingston County circuit court sentenced Birge to 24 years and 6 months’ imprisonment and to pay the victim $117,230 in restitution. The Illinois Supreme Court affirmed the convictions but vacated Birge’s sentence. In admonishing the jury under Rule 431(b) the trial court properly grouped the principles of presumption of innocence, reasonable doubt, the state’s burden of proof, and the defendant’s right to not testify into one broad statement of law. The prospective jurors expressed their understanding and acceptance of the principles by a show of hands; nothing suggests that the jurors were confused by the court’s presentation and the defense counsel asked follow-up questions. The restitution order, however, lacked a sufficient evidentiary basis for the amount imposed (730 ILCS 5/5- 5-6(f). The trial court must determine the amount of restitution based on such factors as “actual out-of-pocket expenses, losses, [and] damages.

People v. Jackson

Court: Supreme Court of Illinois

Citation: 2021 IL 124818

Opinion Date: February 19, 2021

Judge: Anne M. Burke

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Based on a 2001 gang-related shooting Jackson was convicted in Cook County of first-degree murder and aggravated battery with a firearm. After his direct appeal and an initial post-conviction petition were unsuccessful, he sought leave in the circuit court to file a successive post-conviction petition, arguing that his constitutional right to due process of law was violated at trial by the state’s use of witness statements that were the product of police intimidation or coercion and that he is actually innocent of the crimes for which he was convicted. Jackson attached documents that purport to show a pattern and practice of witness intimidation in other cases by the police detectives who obtained the witness statements, as well as exculpatory affidavits. The appellate court and Illinois Supreme Court affirmed the denial of the petition. The material regarding police misconduct attached to Jackson’s petition is not relevant to establishing a pattern and practice of witness intimidation by the interviewing detectives in this case, so Jackson has not satisfied the “prejudice” prong of the cause-and-prejudice test. Jackson cannot set forth a colorable claim of actual innocence because his supporting affidavits are not new; principles of “fundamental fairness” do not require additional proceedings.

State v. Buman

Court: Iowa Supreme Court

Docket: 19-0981

Opinion Date: February 19, 2021

Judge: Brent R. Appel

Areas of Law: Criminal Law

The Supreme Court reversed Defendant's conviction for wanton neglect of a resident of a health care facility, holding that the admission of a certain exhibit, when coupled with a certain instruction, posed a serious risk of misleading or confusing the jury. Defendant's conviction arose out of his alleged failure to properly ensure that a facility resident as ordered by the patient's physician. On appeal, Defendant argued that the trial court's admission of the standard of care in the nursing profession and the subsequent instructions related to the use of the standard of care in this case were improper. The Supreme Court agreed and reversed the conviction, holding that the professional standards should have been excluded under Iowa R. Evid. 5.403 and that the court's jury instructions did not mitigate the problem.

State v. Struve

Court: Iowa Supreme Court

Docket: 19-1614

Opinion Date: February 19, 2021

Judge: Oxley

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the judgment of the district court denying Defendant's motion to suppress, holding that observations of a driver holding a phone in front of his face and actively manipulating the screen for at least ten seconds justified stopping the driver to resolve any ambiguity about whether the driver was violating Iowa Code 321.276. Section 321.276 allows drivers to use cell phones for some limited purposes while prohibiting most others. Defendant was stopped when officers believed he might be violating the statute. In his motion to suppress, Defendant argued that the officers lacked reasonable suspicion that Defendant was committing a traffic violation. The district court denied the motion. The Supreme Court affirmed, holding that the officers had reasonable suspicion Defendant was violating section 321.276 to support an investigatory stop.

State v. Fraire

Court: Kansas Supreme Court

Docket: 121378

Opinion Date: February 19, 2021

Judge: Eric S. Rosen

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's convictions of premeditated first-degree murder and criminal possession of a weapon by a convicted felon but vacated the imposition of lifetime postrelease supervision as part of Defendant's sentence, holding that this portion of the sentence was erroneous. A jury convicted Defendant of both premeditated first-degree murder and criminal possession of a weapon by a convicted felon. The trial court sentenced him to a hard fifty life sentence for the murder and lifetime postrelease supervision for that charge. The Supreme Court affirmed in part and vacated in part, holding (1) the trial court did not err in denying Defendant's motion for mistrial; (2) the prosecutor's comments during opening statement did not constitute error; (3) the verdict from presented no error of law; and (4) the sentencing court had no authority to order a term of postrelease supervision.

State v. Gordon

Court: Maine Supreme Judicial Court

Citation: 2021 ME 9

Opinion Date: February 23, 2021

Judge: Humphrey

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the twelve-year concurrent sentences imposed on Defendant for three counts of aggravated trafficking in scheduled drugs months after the parties entered into a plea agreement involving the dismissal of other charges, holding that the trial court did not misapply sentencing principles or abuse its sentencing authority. Defendant was convicted of three counts of aggravated trafficking in scheduled drugs and was sentenced to twelve-year concurrent sentences. On appeal, Defendant argued that the trial court violated his due process rights by imposing the maximum sentences allowed by the plea agreement and disregarded sentencing factors when it refused to suspend a portion of Defendant's sentences and order probation. The Supreme Judicial Court affirmed, holding that the trial court did not abuse its discretion when it determined that concurrent, unsuspended twelve-year sentences with no period of probation were appropriate for the three aggravated trafficking convictions.

Commonwealth v. Caliz

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12932

Opinion Date: February 23, 2021

Judge: Lowy

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the order of the superior court denying Defendant's motion for credit for time he served on a drug conviction that was vacated after the scandal at the State Laboratory Institute in Amherst at the campus of the University of Massachusetts was revealed, holding that Defendant was not entitled to mandatory credit in this case. In 2018, the Supreme Judicial Court ordered the vacated and dismissal with prejudice of thousands of drug convictions that relied on substances tested at the Amherst lab during certain periods of Sonja Farak's employment as a chemist at the lab. That same year, Defendant filed a motion for jail credit in his 2017 criminal case. The judge denied the motion, concluding that Defendant was not entitled to credit because government misconduct at a drug laboratory was not equally compelling to actual innocence. The Supreme Judicial Court affirmed, holding that, under the circumstances of this case, Defendant was not owed credit toward his conviction.

Commonwealth v. Chalue

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12457

Opinion Date: February 23, 2021

Judge: Lowy

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Judicial Court affirmed Defendant's convictions three counts of murder in the first degree and concluded that Defendant was not entitled to relief under Mass. Gen. Laws ch. 278, 33E, holding that there was no reversible error in the proceedings below. Specifically, the Supreme Judicial Court held (1) the trial judge erred by giving a charge in accordance with Commonwealth v. Rodriguez, 364 Mass. 87 (1973), and Commonwealth v. Tuey, 8 Cush. 1, 2-3, to an individual juror after the jury had been polled, but the error was not prejudicial; (2) some the trial judge's rulings admitting prior bad acts evidence were in error, but the errors were not prejudicial; (3) the judge did not abuse his discretion in admitting coventurer statements; (4) certain remarks made by the prosecutor in opening and closing arguments were in error, but the error was not prejudicial; (5) the trial judge did not err by denying Defendant's motion to suppress; and (6) this Court declines to exercise its authority under Mass. Gen. Laws ch. 278, 33E to order a new trial or direct the entry of verdicts of a lesser degree of guilt.

Commonwealth v. Colas

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12701

Opinion Date: February 22, 2021

Judge: Gaziano

Areas of Law: Criminal Law

The Supreme Judicial Court vacated Defendant's convictions of murder in the first degree and armed assault with intent to murder and affirmed Defendant's conviction of assault and battery by means of a dangerous weapon, holding that the evidence was insufficient to support the murder conviction and the assault and battery by means of a dangerous weapon convictions. At trial, the Commonwealth proceeded on a theory that Defendant had initiated a gunfight with codefendant Keith Williams and was therefore liable for harm to innocent bystanders. The Supreme Judicial Court vacated the convictions in part, holding (1) there was insufficient evidence to convict Defendant of murder in the first degree; (2) the Commonwealth failed to introduce sufficient evidence to support Defendant's conviction of assault and battery by means of a dangerous weapon; and (3) Defendant was not entitled to relief on his remaining allegations of error.

State v. Madren

Court: Nebraska Supreme Court

Citation: 308 Neb. 443

Opinion Date: February 19, 2021

Judge: Freudenberg

Areas of Law: Criminal Law

The Supreme Court reversed the judgment of the court of appeals affirming the district court's denials of Defendant's motions for mistrial and new trial, holding that the district court erred in failing to hold an evidentiary hearing. Defendant was convicted of first degree sexual assault. Defendant filed motions for mistrial and new trial after the district court mistakenly failed to dismiss an alternate juror who remained with the jury during the first hour of deliberations. The district court denied the motions, and the court of appeals affirmed. The Supreme Court reversed and remanded the case, holding that the district court erred in failing to hold an evidentiary hearing regarding the alternate juror participation in deliberations.

State v. Wines

Court: Nebraska Supreme Court

Citation: 308 Neb. 468

Opinion Date: February 19, 2021

Judge: Papik

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's sentences in both a 2016 criminal case and a 2018 criminal case, holding that the district court did not err in its award of credit for time served. In the first criminal proceeding, commenced in 2016, Defendant entered pleas of guilty to one count of delivery of a controlled substance and one count of attempted delivery of a controlled substance. In 2018, in the second criminal proceeding, Defendant entered a plea of no contest to several offenses. Defendant appealed, challenging both sentences. The court of appeals found plain error and vacated several sentences imposed in both cases. On remand, the district court resentenced Defendant in both cases. Defendant appealed, arguing that the district court failed to award him all of the credit for time served to which he was entitled for his sentences in the 2018 case. The Supreme Court affirmed, holding that there was no error in the district court's sentences.

In the Matter of the Request to Release Certain Pretrial Detainees

Court: Supreme Court of New Jersey

Docket: m-550-20

Opinion Date: February 11, 2021

Judge: Stuart Rabner

Areas of Law: Constitutional Law, Criminal Law

The New Jersey Office of the Public Defender and the American Civil Liberties Union of New Jersey (ACLU) jointly sought two forms of relief: (1) the release of all defendants detained for six months or longer whose most serious charge is a second-degree offense or lower, with an opportunity for the State to object in individual cases and seek to justify continued detention under an enhanced burden of proof; and (2) new detention hearings under N.J.S.A. 2A:162-19(f) for all defendants detained for six months or longer who were charged with a first-degree offense and entitled to a presumption of release. Movants relied on constitutional and statutory bases in support of their requests, but the New Jersey Supreme Court declined to grant total relief, finding N.J.S.A. 2A:162-19(f) presented a path for individual defendants to argue against continued detention when (1) there is new information, or a change in circumstances, (2) that is material to the release decision. As to the first prong, the Court found “that the worldwide pandemic that has afflicted New Jersey and its prison system amounts to a change in circumstances” within the meaning of Rule 3:21-10(b)(2). "The Judiciary ... will again resume criminal jury trials in person when conditions sufficiently improve. Although there will be a considerable backlog of cases to address, we hope that recent positive developments will enable the criminal justice system to resolve many outstanding criminal charges in a timely manner."

Oregon v. Banks

Court: Oregon Supreme Court

Docket: S067549

Opinion Date: February 25, 2021

Judge: Duncan

Areas of Law: Constitutional Law, Criminal Law

The State charged defendant Daezhar Banks with harassment based on an incident at a mobile phone store. Before trial, the State provided defendant with a video from the store’s security system, but the video did not show the alleged harassment. During voir dire, the prosecutor told the prospective jurors, over defense counsel’s objections, that “the rules of evidence” limited what she could present to the jury, that “some things are not going to come into the trial today,” and that the jury was “not going to have all the facts.” In support of his objections, defense counsel argued that the prosecutor’s statements implied “that there’s more video, but for some reason that video didn’t get to come in by the rules of evidence.” Defense counsel asked the trial court to instruct the jury that it should not assume that “the rules of evidence have precluded any evidence at this point.” The court denied defense counsel’s request. During the trial, defense counsel disputed that defendant had committed the alleged harassment and argued, among other things, that, although the store had three security cameras and one of its employees had testified that the cameras would have captured the full incident, the state had failed to produce video of the alleged harassment. During deliberations, the jury sent questions to the court, asking if the prosecutor knew whether there was video of the alleged harassment and, if so, whether the prosecutor was required to show it at trial. The court responded by telling the jury that it had been “provided the admit- ted evidence in this case” and that the court was “unable to provide further response.” The jury found defendant guilty. Defendant appealed, arguing that the trial court committed reversible error by overruling defense counsel’s objections and denying his requested jury instruction. The Oregon Supreme Court concurred with defense counsel, and ruled that the trial court's error was not harmless. The trial court's judgment was reversed, and the matter remanded for a new trial.

Oregon v. Ross

Court: Oregon Supreme Court

Docket: S067936

Opinion Date: February 25, 2021

Judge: Nakamoto

Areas of Law: Constitutional Law, Criminal Law

Both relator Michael Ross and the State asked the trial court to instruct the jury that it could acquit defendant by a vote of 10-to-2. The trial court concluded that, in the wake of Ramos v. Louisiana, 140 S Ct 1390 (2020), any verdict on serious criminal charges - whether to convict or to acquit - must be unanimous, and the court informed the parties that it would instruct the jury accordingly. Relator contended that, although the Supreme Court’s holding in Ramos would render a nonunanimous guilty verdict in his trial unconstitutional under the Sixth Amendment, that holding did not affect the viability of Oregon law - specifically, Article I, section 11, of the Oregon Constitution and ORS 136.450 - authorizing a nonunanimous not-guilty verdict. To this the Oregon Supreme Court agreed with relator and issued a peremptory writ of mandamus ordering the trial court to instruct the jury that Oregon law required a unanimous guilty verdict for all charges and permits a not-guilty verdict by a vote of 11-to-1 or 10-to-2.

State v. Evans

Court: South Dakota Supreme Court

Citation: 2021 S.D. 12

Opinion Date: February 24, 2021

Judge: Devaney

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction of rape, kidnapping, aggravated assault, burglary, and other offenses, holding that there was no prejudicial error in the proceedings below. Specifically, the Supreme Court held that the circuit court (1) abused its discretion in admitting other act evidence from Defendant's ex-wife, but the error did not necessitate reversal; (2) followed the statutory procedures during jury selection such that structural or other reversible error did not occur; (3) did not err in denying Defendant's motion to suppress; and (4) did not abuse its discretion in admitting certain testimony.

State v. Miles

Court: South Dakota Supreme Court

Citation: 2021 S.D. 13

Opinion Date: February 24, 2021

Judge: Kern

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed Defendant's sentence entered after he pled nolo contendere to three counts of possession of child pornography pursuant to a plea agreement, holding that the sentence did not violate the Eighth Amendment or constitute an abuse of discretion. The circuit court sentenced Defendant to ten years' incarceration, with six years suspended on each count and credit for time served. The court ordered counts one and two to be served consecutively with count three to run concurrently. The Supreme Court affirmed, holding (1) Defendant's sentence did not violate the Eighth Amendment's prohibition against cruel and unusual punishment; and (2) the circuit court did not abuse its discretion in sentencing Defendant.

State v. Scott

Court: Tennessee Supreme Court

Docket: M2018-01852-SC-R11-CD

Opinion Date: February 23, 2021

Judge: Page

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court reversed the judgment of the court of criminal appeals dismissing Defendant's appeal and dismissed Defendant's convictions for possession with the intent to deliver more than twenty-six grams of methamphetamine and possession of drug paraphernalia, holding that the initial search of Defendant's house during which law enforcement discovered illegal contraband was unlawful. Defendant pled guilty but specifically reserved a certified question of law pertaining to the legality of the search in this case. The court of criminal appeals dismissed the appeal, determining that the certified question was not dispositive because the evidence would have been admissible notwithstanding the search in question under the inevitable discovery doctrine. The Supreme Court reversed and dismissed Defendant's convictions, holding (1) the inevitable discovery doctrine did not apply in this case; and (2) the State did not carry its burden of proving that either exigent circumstances or voluntary consent justified their warrantless search of Defendant's home.

Vermont v. Misch

Court: Vermont Supreme Court

Citation: 2021 VT 10

Opinion Date: February 19, 2021

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Defendant Max Misch was charged under 13 V.S.A. 4021(a) with two counts of unlawfully possessing a large-capacity magazine. This issue this appeal presented for the Vermont Supreme Court's review was whether Vermont’s ban on large- capacity magazines (LCMs) violated the right to bear arms under Chapter I, Article 16 of the Vermont Constitution. To this, the Supreme Court concluded the magazine ban was a reasonable regulation of the right of the people to bear arms for self-defense, and therefore affirmed the trial court’s denial of defendant’s motion to dismiss the charges against him.

Ferrara v. Commonwealth

Court: Supreme Court of Virginia

Docket: 200117

Opinion Date: February 25, 2021

Judge: McCullough

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the circuit court ordering Defendant to be civilly committed as a sexually violent predator for purposes of Virginia's Sexually Violent Predators Act (SVPA), Va. Code 37.2-900 through -921, holding that any error by the circuit court in construing Va. Code 37.2-906 was harmless. At his commitment hearing, Defendant sought to introduce as substantive evidence the results of two prior mental health evaluations by a previous Commonwealth expert. The circuit court concluded that section 37.2-906 foreclosed the introduction of this evidence due to Defendant's failure to cooperate with the required evaluation in the present proceedings. Defendant appealed, arguing (1) section 37.2-906 applies to probable cause hearings rather than civil commitment hearings; and (2) any error by the trial court in construing the statutes was harmless.

Kenner v. Commonwealth

Court: Supreme Court of Virginia

Docket: 200027

Opinion Date: February 25, 2021

Judge: Cleo E. Powell

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals affirming Defendant's convictions for animate object sexual penetration, aggravated sexual battery, and custodial sexual abuse, holding that that the court of appeals did not err in affirming the trial court's judgment. Specifically, the Supreme Court held (1) Defendant was not prejudiced by the introduction of the titles of child pornography downloads found on the desktop computer in Defendant's bedroom; and (2) the trial court did not err in denying Defendant's motion to poll the jury filed before the jury had begun its sentencing phase deliberations due to the nature of the bifurcated procedure in criminal trials.

Washington v. Blake

Court: Washington Supreme Court

Docket: 96873-0

Opinion Date: February 25, 2021

Judge: Sheryl Gordon McCloud

Areas of Law: Constitutional Law, Criminal Law

Washington’s strict liability drug possession statute, RCW 69.50.4013, made possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and did this without proof that the defendant even knew they possessed the substance. In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. They arrested three people on the property, including petitioner Shannon Blake. At the jail, a corrections officer discovered a small baggy containing methamphetamine in the coin pocket of Blake’s jeans. The State charged Blake with possession of a controlled substance. At a bench trial, Blake relied on the affirmative defense of "unwitting possession:" a friend bought the jeans secondhand and gave them to Blake two days before Blake's arrest; Blake never used methamphetamine and did not know drugs were in the pocket; and Blake's boyfriend testified Blake was not a drug user. The trial court found Blake possessed drugs without finding her possession was intentional or knowing. The court concluded Blake did not meet her burden proving her possession was unwitting. This case presented an issue of first impression for the Washington Supreme Court: whether the strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceeded the legislature’s police power. The Court concluded the answer was yes, this exceeded the State's police power. Blake's conviction was vacated.

Washington v. Waller

Court: Washington Supreme Court

Docket: 98326-7

Opinion Date: February 25, 2021

Judge: Sheryl Gordon McCloud

Areas of Law: Constitutional Law, Criminal Law

In this case, the superior court did not clearly state that it was “arresting or vacating” Respondent Anthony Waller’s judgment, or even granting his motion, in its first order on his CrR 7.8 motion. Instead, it skipped straight ahead to ordering a resentencing hearing. This case presented a question about the application of RAP 2.2(b)(3) in this unusual context: Does a series of superior court orders retaining jurisdiction of a CrR 7.8 motion, scheduling a resentencing hearing, ordering the prisoner transported for that resentencing hearing, and clarifying that the first order did indeed grant the CrR 7.8 motion, amount to granting the motion and “vacating” the old sentence within the meaning of RAP 2.2(b)(3)? The Washington Supreme Court held that it did, and reversed the Court of Appeals. "[W]hen a superior court receives a CrR 7.8 motion, it should follow the CrR 7.8(c) procedures. Pursuant to those procedures, the court should ordinarily hold a show cause hearing before granting relief."

State v. Chambers

Court: Wisconsin Supreme Court

Docket: 2019AP000411-CR

Opinion Date: February 23, 2021

Judge: Annette Kingsland Ziegler

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals affirming the circuit court's judgment of conviction and order denying Defendant's postconviction motion, holding that Defendant's counsel never conceded Defendant's guilt during closing arguments. A jury found Defendant guilty of second-degree reckless homicide with a dangerous weapon, as a party to a crime, and possession of a firearm by a person adjudicated delinquent for a felony. After Defendant was convicted, the United States Supreme Court decided McCoy v. Louisiana, 138 S. Ct. 1500 (2018). Seeking to apply McCoy to his case, Defendant filed a motion for postconviction relief, arguing that trial counsel conceded his guilt during closing arguments. The circuit court denied relief. The Supreme Court affirmed, holding that Defendant's McCoy argument failed because defense counsel did not concede Defendant's guilt during closing arguments.

Fuller v. State

Court: Wyoming Supreme Court

Citation: 2021 WY 36

Opinion Date: February 24, 2021

Judge: Kautz

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court reversed the decision of the district court denying Defendant's motion to suppress evidence discovered after law enforcement entered Defendant's apartment without a warrant to arrest him after he failed to stop for a traffic violation, holding that the district court erred. In denying Defendant's pretrial motion to suppress the district court concluded that the officers' warrantless entry into Defendant's apartment to arrest him was constitutional under the hot pursuit exception to the Fourth Amendment's warrant requirement. The Supreme Court reversed, holding that, under the circumstances, there was no compelling need requiring immediate police action.

Mackley v. State

Court: Wyoming Supreme Court

Citation: 2021 WY 33

Opinion Date: February 22, 2021

Judge: Kate M. Fox

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction for aggravated animal cruelty and reckless endangering, holding that there was no error and that the evidence was sufficient to support the convictions. Defendant's convictions arose from a dog fight that resulted in a local teenager grabbing Rocky, a boxer, into the street and Defendant, the owner of the other dogs involved in the fight, shooting Rocky as he was held by the teenager. On appeal, Defendant argued that the district court erred in instructing the jury on the law of animal cruelty and that the evidence was insufficient to convict him of reckless endangering. The Supreme Court affirmed, holding (1) Defendant waived his argument that the jury instruction was confusing or misleading; (2) the district court properly denied Defendant's proposed elements instruction; and (3) the evidence was sufficient to sustain the conviction of reckless endangering.