Friday, February 12, 2010
Bell Folsom, P.A. has been contacted by an Innocence Project to help reverse a wrongful conviction. The case is extremely complicated, but essentially it seems that the client was wrongfully convicted of first degree murder because his trial counsel did an inadequate job.
There is a way to get a conviction reversed when your attorney at trial doesn't do what they should - it's called ineffective assistance of counsel, and it's somewhat difficult to prove. First, unlike the "guilt" part of the hearing, the burden is on the defendant, not the prosecution, to prove that the lawyer was ineffective. Second, even if you prove your lawyer was ineffective, you still have to prove "prejudice" - meaning that if the lawyer had done what they were supposed to do, the jury's verdict would have been different.
This case has really brought home to us how important the choice of a lawyer is. Even if you are completely innocent of the crime charged, your case depends on your lawyer's ability to perform a proper investigation and have the facts ready to demonstrate your innocence to the jury. It also depends on your lawyer's ability to identify, research and argue the appropriate issues.
At Bell Folsom, P.A., our attorneys practice nothing but criminal defense. We have devoted years to perfecting our practice, and are always looking for ways to improve. If you have been charged with a crime, whether it be a DUI or murder, be certain that you are hiring a firm that knows what they're doing. Because when it's your life on the line, amateurs simply aren't going to cut it.
Friday, January 29, 2010
Two more victories. In the first case, the client was charged with a drug felony for possession of a large amount of marijuana. Our firm filed a motion to suppress the search of the client's care, citing a violation of the Fourth Amendment. An officer cannot simply begin searching a car without some reasonable suspicion that criminal activity is afoot. When the prosecutor read our motion, they dismissed the drug charge. Our client paid a speeding ticket.
In the second case, our client was charged with a fifth DUI. This is a felony charge in the state of Kansas and carries significant mandatory prison time. Our firm filed a motion to suppress the results of the Intoxilyzer 8000, citing numerous problems with the testing procedure. When the prosecutor read our motion, they dismissed the DUI charge. Our client will pay a $100 fine.
Being able to spot potential issues in your cases requires a mind focused solely on criminal defense. Being able to write and argue motions based on those issues requires years of experience that only can be gained by performing solely criminal defense work.
Make no mistake: These motions can end a case before it starts, and can mean the difference between freedom and prison.
Friday, January 22, 2010
Our firm recently secured a victory for a client charged with Aggravated Assault and Battery. Under cross-examination by our attorneys, the alleged victim admitted that he was not in fear of bodily harm when our client held a knife to his throat. Because one of the elements of aggravated assault is an "imminent fear of bodily harm," the judge was forced to throw out the charge of aggravated assault. Our firm then filed a motion to dismiss the battery charge, citing self-defense. The prosecutor opted to withdraw that charge as well. The client, once facing over a year in prison, will now serve no time in jail.
Stories like this illustrate what an experienced criminal defense firm can do for you. If your freedom is on the line, it is critical that you hire a firm that doesn't just dabble in criminal defense, but specializes in it.
Friday, January 15, 2010
Sex Offender Laws & the Ex Post Facto Clause
During the last year, there have been numerous challenges around the country to the retroactive application of sex offender laws. We’ve listed a few of the notable cases below where courts have held that the retroactive application of these laws constituted unconstitutional ex post facto punishment. We also discuss the case of Carr v. United States, currently pending in the U.S. Supreme Court, which involves an Ex Post Facto Clause challenge to the retroactive application of the Sex Offender Registration and Notification Act (SORNA).
Missouri
Earlier this week, the Missouri Supreme Court held that laws regulating where sex offenders live and what they do on Halloween cannot apply to those convicted before the laws took effect. Here is the court’s opinion, and here is a KC Star article on the case.
Nebraska
As explained here, a federal district court judge enjoined part of Nebraska’s new sex offender law, holding that Nebraska will not be allowed to enforce the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences:
(1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and
(2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).
The court held
[F]or offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to . . . live . . . as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.”
Here is the full text of the judge’s order.
Maine
As detailed here, in State v. Letalien (2009), the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. The Maine Supreme Court held that the change in the registration law violated the US Constitution’s prohibition against ex post facto punishments, noting that the Federal and Maine Constitutions provide the same Ex Post Facto protections.
Indiana
In Wallace v. State (2009), the Indiana Supreme Court held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the ex post facto clause of the Indiana Constitution.
Kentucky
In Kentucky v. Baker (Oct. 1, 2009), the Kentucky Supreme Court held that KRS 17.545, which restricts where registered sex offenders may live, could not be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. The court noted that the retroactive application of the statute was an ex post facto punishment, which violated Article 1, Section 10 of the United States Constitution and Section 19(1) of the Kentucky Constitution.
Ninth Circuit
The Ninth Circuit Court of Appeals declared in U.S. v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders:
We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional.
Upcoming SCOTUS decision
In Carr v. United States, Docket No. 08-1301, the US Supreme Court will soon consider an ex post facto challenge to SORNA. Oral argument is scheduled for February 24, 2010. The issue to be decided is:
Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.
Here is a nice amicus curiae brief (written by Doug Berman, Wayne Logan, and Corey Yung) that argues that SORNA violates the Ex Post Facto Clause of the U.S. Constitution.
At Bell Folsom, P.A. our attorneys have experience fighting some of the most cruel and unusual sex offender provisions signed into law. Our experienced team of trial attorneys, appellate attorneys, experts and investigators work to ensure that none of our clients have to undergo such inhumane treatment.
January 7, 2010
Recently, in State v. Marx, No. 98,059 and 98,060 (Kan. Sept. 18, 2009), the Kansas Supreme Court upheld the suppression of evidence following a traffic stop when the officer's reason for pulling over the driver was that the car “failed to maintain a single lane.” This type of justification for a traffic stop arises often in DUI cases and drug cases that involve a traffic stop.
The Marx decision held that a vehicle's failure to maintain a lane is not a sufficient reason for an officer to make a traffic stop of the vehicle. The officer must believe that the failure to stay in the lane was not based on the fact that it was impractical to do so (such as weather conditions, obstacles in the road, etc.). At a suppression hearing, when the State wants to prove the lawfulness of a traffic stop based on the “failure to maintain a lane,” the State must provide the court with evidence of more than “incidental and minimal lane breach.”
The Marx decision was recently relied upon by two different panels of the Court of Appeals in State v. Sullivan, No. 101, 850 (Kan. Ct. App. Oct. 16, 2009) (unpublished) and State v. Jimeson, No. 102,158 (Kan. Ct. App. Nov. 13, 2009) (unpublished). Both of these cases involved DUI arrests where the evidence of the traffic stop was ultimately suppressed.
At Bell Folsom, P.A, our attorneys have won the suppression of evidence in traffic stop cases based on the rationale used in the Marx decision. Our attorneys are well versed in the most recent case law regarding traffic stops and are experienced in holding the State to the burden of proving the lawfulness of traffic stops.
December 18, 2009
Today the Kansas Supreme Court released its decision in State v. McMullen, a Jessica's Law case. As part of his appeal, the Defendant claimed that his so-called "confession" was the result of police deception. Unfortunately, the Supreme Court found that his defense attorney had failed to include evidence of such deception in the record, which means the Supreme Court couldn't review it.
"McMullen's first obstacle is self-inflicted. The record on appeal does not provide the information necessary for this court to review the factual findings upon which the district court's decision was based. Apparently, McMullen['s lawyer] did not file a suppression motion, but rather the Jackson v. Denno hearing was requested by the State. Consequently, we have no record of the arguments that McMullen['s] lawyer presented to the district court. Further, without the hearing transcript, we have no record of the State's evidence and, obviously, cannot determine whether that evidence was substantial and competent so as to carry the State's burden. Most importantly, the appearance docket, which simply states that McMullen's statement was admissible, is the only record of the court's ruling on the matter, i.e., we have no findings of fact to review. Moreover, the only conclusion of law presented by the record for our review is the ultimate determination by the district court to admit the confession.
"At oral argument, McMullen['s lawyer] acknowledged that it is his duty to properly designate the record on appeal to support his claims of error. See State v. Trussell, 289 Kan. 499, 507, 213 P.3d 1052 (2009); State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). If that record is inadequate, the appellate court presumes the district court's findings were properly supported and the claim of error must fail. Trussell, 289 Kan. at 507 (citing State v. Haney, 34 Kan. App. 2d 232, 236, 116 P.3d 747, rev. denied 280 Kan. 987 [2005]); Paul, 285 Kan. at 670."
This holding illustrates why it is critical - critical - to have an experienced criminal defense attorney in all stages of the proceeding. The fact that McMullen's lawyer never filed a suppression motion may have, in and of itself, stopped the Supreme Court from reviewing his confession. Even worse, his appeal lawyer didn't even have a transcript of the hearing added to the record! That failure is inexcusable, because without that transcript the Supreme Court has no basis to find McMullen's confession was the result of deceptive police tactics.
At Bell Folsom, P.A, our attorneys have filed hundreds of appeals. We know how to include critical evidence in the record and avoid negligent "self-inflicted wounds." And if you don't believe that an experienced criminal defense attorney is important, just ask Mr. McMullen. He'll be spending the next fifty years of his life in prison.
December 11, 2009
In State v. Wells, No. 99,813 (Kan. Dec. 11, 2009), the Kansas Supreme Court ordered a new trial in a Riley County criminal sodomy prosecution. The Court reversed based on the improper admission of prior bad act evidence for "motive" and "intent." The Court restated the standards regarding admission of this type of evidence and then analyzed whether "motive" was a disputed issue in the case:
"In our view, the use of the defendant's prior bad acts to ostensibly prove his motive for entering the bedroom here is a dangerously short step away from simply using prior bad acts to prove his motive for committing the current, virtually identical, bad act. A prosecutor might argue: 'We know his motive for going to her room that night was to sodomize her–because the evidence shows that he had sodomized her in this same house, perhaps in this same room, on prior occasions.' Indeed, the language chosen by the State comes close to making this very argument in the instant case.
. . . .
"Conviction for mere 'propensity'–defined by The American Heritage Dictionary of the English Language 1048 (1971), as an innate inclination, a tendency or bent–would be the almost certain result of admitting this evidence for motive. If this evidentiary admission practice were approved, prosecutors would understandably begin pressing trial courts for admission of all other past bad acts of a defendant to serve as motive for his or her present charges, especially when any degree of similarity existed."
Similarly, the Court analyzed "intent" as a potential disputed issue:
"If the defendant admits the conduct but offers an 'innocent' explanation, the Dotson court suggests the evidence of other crimes is admissible on intent. But if, as in Dotson, the defendant admits the conduct and offers no explanation, and no inference can be drawn regarding the innocence of the conduct, the evidence is not admissible on intent. When a defendant wholly denies committing the alleged acts, admitting evidence of prior bad acts to prove intent is error."
This holding is a significant limitation on prosecutors' favorite tool: using bad things from a person's past to prove that they must be guilty. It is one of the most abused tools in the prosecutors' arsenal, and it depends upon the jury essentially deciding a defendant is a bad person instead of deciding whether or not they are guilty of a crime.
Our firm has had signficant success in keeping this type of evidence out of court based largely on the reasoning the Court stated above.