Innocence Ain’t Good Enough to Get Out of Prison

June 15, 2012

Andrew F. Scott | Gavel: Ohio Supreme Court
Ohio Supreme Court
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Federal prosecutors have many tools to fight crime in their toolbox and one of their favorites to use is the federal statute that prohibits a previously convicted felon from possessing a firearm. The potential penalty is a sentence of up to 10 years in prison.

In the the typical case, state law enforcement officers will arrest a suspect for some relatively minor offense, often a misdemeanor or gross misdemeanor such as a DUI, or a minor felony such as possession of a small quantity of marijuana, and while searching the suspect, they find a firearm. When they subsequently check the suspect’s prior record, they discover a prior felony conviction.

Question: Now what do they do?

Answer: They contact the feds and turn the case over to them.

Why?

Because a federal felon-in-possession-of-a-firearm charge is a far more serious offense resulting in a much longer sentence than would be imposed in state court if the suspect were convicted. Usually the difference is many years versus a few months.

Felon in possession charges are also very easy to prove and most defendants plead guilty.

No muss, no fuss.

Buh-bye.

Oops, not so in North Carolina anymore.

Why?

Because North Carolina switched to a “structured” sentencing format in 1993 in which the maximum sentence for any given offense is based on the crime of conviction and the person’s prior record. Under this system, the maximum sentence that may be imposed on a person committing a relatively minor offense that previously could have resulted in a prison sentence (i.e., more than a year incarceration), is now capped at less than a year.

Why is this change significant?

A prior felony is defined by federal law as a criminal offense for which the maximum sentence that can be imposed exceeds one year incarceration. This means that people convicted in North Carolina since 1993 of offenses that previously qualified as minor felonies (i.e., potentially punishable by a sentence of more than a year incarceration) have been convicted of offenses that no longer qualify as felonies under federal law, if the maximum potential sentence is less than one year.

The Problem:

Despite the change in the law in 1993 reducing the maximum potential penalties for many minor felonies to less than one year incarceration (i.e., changing the offenses to non-felonies under federal law), the state continued to refer and the feds continued to accept and prosecute cases charging people with felon in possession of a firearm where the prior felony conviction was no longer technically a felony conviction under federal law.

When did that change?

On August 17, 2011 when the Fourth Circuit Court of Appeals decided United States v. Simmons.

Since that time, federal prosecutors in the three federal districts in North Carolina have stopped prosecuting cases where the prior conviction no longer constitutes a felony due to the 1993 change in North Carolina law. They also dismissed any cases in that category that were still pending on direct appeal.

What about everybody else who either did not appeal their conviction because they pled guilty not believing they had a valid legal issue, or they exhausted their appeal before Simmons was decided last year?

Tsk, tsk. Sorry old chap. Too bad. So sad. No can do.

Yep. The United States Attorney in each of the three federal districts in North Carolina conceded the defendants in those cases are innocent, but they say they have no remedy except to file a writ of habeas corpus and habeas corpus is limited to raising issues of constitutional law. Innocence does not count, they say.

How many people are affected by this error?

Nobody knows, including many people convicted under the federal statute.

Federal public defenders in the three districts are searching their files.

USA Today broke this story yesterday and they reported that they found more than 60 cases in just one of the three districts,

USA TODAY conducted a similar, though far more limited review, examining every gun conviction in western North Carolina between 2005 and 2011. The review was limited to people who had been convicted only of gun possession, and included only those cases in which federal prosecutors had specifically identified the prior offense that made possession a crime. USA TODAY used state court records to find those cases in which the men’s prior convictions were, in hindsight, not serious enough to convict them of the federal crime.

This is a no-brainer. Congress absolutely must pass a law that permits innocence to be raised as a separate issue on direct appeal and in post-conviction habeas petitions without any time-limit restriction within which the petition must be filed and, if it does not do so, the Supreme Court must create the remedy.

Please take a few minutes to read the USA Today story, particularly the stories of some of the people affected by this mess.


Update on the Frog Gravy Legal Case

February 21, 2012

The Kentucky Supreme Court denied our Motion For Discretionary Review of the Frog Gravy legal case without opinion or comment. Here is a copy of the order:

10 02/15/2012 ORDER DENYING DISCRETIONARY REVIEW: DD
11 02/15/2012 FINALITY: FL

Source.

This means we have reached the end of the road on the direct appeal in Kentucky and the published opinion by the Court of Appeals is the law of the case. The briefs filed by the parties will be available online at the Chase Law School in Kentucky at some point.

Documents in this case, including the briefs and the published opinion (pdf), are also available here:

http://froggravy.wordpress.com/2012/02/06/table-of-contents-court-briefs-and-documents-frog-gravy-legal-case/

The preliminary hearing is here:

http://froggravy.wordpress.com/2012/02/05/the-full-text-preliminary-hearing-frog-gravy-legal-case/

The Grand Jury hearing is here:

http://froggravy.wordpress.com/2012/01/12/the-full-text-grand-jury-hearing/

The exculpatory labs are here:

http://froggravy.wordpress.com/2011/10/16/grand-jury-misuse-and-perjury-frog-gravy-38/

The suppression hearing is here:

http://froggravy.wordpress.com/2012/02/08/the-full-text-suppression-hearing-pdf-frog-gravy-legal-case/

The first order denying suppression:

http://froggravy.wordpress.com/2012/02/08/the-first-of-three-orders-denying-suppression-frog-gravy-legal-case/

And the second, and the third:

http://froggravy.wordpress.com/2012/02/08/the-second-and-third-orders-denying-suppression-frog-gravy-legal-case/

Other documents:

http://froggravy.wordpress.com/2012/02/13/more-documents-frog-gravy-legal-case/

What is the next step in this case?

There are three options right now:

1. Do nothing. The case no longer specifically impacts our day-to-day lives one way or the other. Fortunately, my wife is not on death row. The case will impact others in the future, because it is published and it sets precedent. One option is to do nothing.

2. Petition the United States Supreme Court for Certiorari, or review, of the decision. The issues are very specific in such a petition. Here is more information about Certiorari:

http://en.wikipedia.org/wiki/Certiorari

3. File a state habeas corpus petition alleging ineffective assistance of counsel. In Kentucky, this is called an 11.42 petition. Here is more information about that:

http://en.wikipedia.org/wiki/Ineffective_assistance_of_counsel

It will be interesting to see how this case will impact future cases.

This latest result is entirely consistent with the patterns and practices of the case so far, as evidenced by these documents.


Table Of Contents Court Briefs And Documents [Frog Gravy Legal Case]

February 6, 2012

For those of you following the legal case, here are the following documents and briefs that have been filed in the case so far. The case currently sits with the Kentucky Supreme Court, as a Motion For Discretionary Review. All of these documents are in the public domain. For law students following this case, here are all of the documents, full-text from original sources, in one convenient place:

1. Appellant opening brief:

https://frederickleatherman.wordpress.com/2011/12/24/the-full-text-opening-brief-frog-gravy-legal-case/

2. Commonwealth Brief In Response:

https://frederickleatherman.wordpress.com/2012/02/06/full-text-commonwealth-brief-pdf-frog-gravy-legal-case/

3. Appellant Reply Brief:

https://frederickleatherman.wordpress.com/2011/12/25/the-full-text-reply-brief-frog-gravy-legal-case/

4. The Court of Appeals Opinion Affirming and To Be Published:

https://frederickleatherman.wordpress.com/2011/12/26/the-full-text-published-opinion-affirming-frog-gravy-legal-case/

5. Appellant Petition For Rehearing:

https://frederickleatherman.wordpress.com/2011/12/23/100/

6. Commonwealth Response to Petition For Rehearing:

The Commonwealth did not file a response. They were not required to file such a response.

7. Court of Appeals denies rehearing without comment, opinion or analysis:

101 04/12/2011 ORDER DENYING PETITION FOR REHEARING ORDER – DENYING PETITION FOR REHEARING.

The source.

8. The Motion For Discretionary Review:

https://frederickleatherman.wordpress.com/category/appeals-2/motion-for-discretionary-review/

9. Commonwealth Response to Motion For Discretionary Review:

https://frederickleatherman.wordpress.com/2012/02/06/commonwealth-full-text-response-to-mdr-pdf-frog-gravy-legal-case/

10. Will add this document on edit.

11. The docket, Court of Appeals:

The Court of Appeals docket in this case is at this site.

The status of the case today:

Case # 2011-SC-000272
Case Type Discretionary Review (CRIMINAL): (1R )
Document Type Discretionary Review: (D)
Case Status Active: (A)
Last Main Event SENT OUT FOR ASSIGNMENT (07/18/2011)

Source.


Commonwealth Full-Text Response To MDR pdf [Frog Gravy legal case]

February 6, 2012

The full-text Motion For Discretionary Review is here:


https://frederickleatherman.wordpress.com/2011/12/22/the-full-text-motion-for-discretionary-review-frog-gravy-legal-case/

Commonwealth Full-Text Response To MDR [Frog Gravy legal case]

20111010084852102 (1)


Full Text Commonwealth Brief pdf [Frog Gravy Legal Case]

February 6, 2012

AG’s brief (1)


The Decision From Hell (Part 3)

December 29, 2011

In Part 1 of this series of posts about the decision from hell, as I have come to call it, I criticized the first part of the Kentucky State Court of Appeals decision in Crane Station’s case.

That part affirmed the circuit court’s pretrial and supplementary post trial decision denying her motion to suppress evidence. In so doing, the Court of Appeals ignored binding legal precedent by United States Supreme Court and Kentucky State Supreme Court cases interpreting the Fourth Amendment. The Court of Appeals, in effect, established a new rule that trial courts may consider evidence acquired after an investigatory stop without the requisite reasonable suspicion in determining whether a police officer had a reasonable suspicion to conduct an investigatory stop. In other words, an otherwise unlawful investigatory stop becomes lawful, if the officer discovers evidence of a crime!

In Part 2, I criticized the Court of Appeals decision that, even if the circuit court improperly restricted her from cross examining the arresting officer, the error was harmless and the conviction should be affirmed. I pointed out there is no question that (1) the trial judge improperly restricted the cross examination and (2) the error violated her Sixth Amendment right to present a defense. Further, because the error involved a constitutional right, the Court of Appeals had applied the wrong rule in determining whether the error was harmless.

If the Court of Appeals had applied the correct rule in Crane’s case, it should have reversed her conviction. Why? Because the correct rule would have required it to conclude that the error affected the outcome of the trial, unless the prosecution could have satisfied it beyond a reasonable doubt that it did not. I demonstrated how that was an impossible in Crane’s case.

Now, let us proceed to take a look at, believe it or not, the most egregious error committed by the Court of Appeals.

After the prosecution rested its case, the defense asked the trial judge to enter a judgment of acquittal on the DUI charge. The trial judge denied the request and the jury subsequently convicted Crane of DUI. The Court of Appeals affirmed the trial judge’s denial of her request.

The problem with this decision is that it ignores the results of two scientific tests of Crane’s blood sample by analysts at the Kentucky State Crime Laboratory that conclusively established to a reasonable scientific certainty that she had no alcohol and no drugs in her blood.

KRS 189A.010, which defines the crime of DUI, required the prosecution to prove beyond a reasonable doubt that Crane operated her motor vehicle while under the influence of alcohol or any other substance or combination of substances which impairs one’s driving ability.

The Court of Appeals said,

The evidence elicited at trial established that Leatherman admitted to Deputy McGuire that she was taking three prescription medications, including Clonazepam, which contains a warning regarding driving while on that medication. Deputy McGuire also testified to his observations of Leatherman’s behavior, including the results of the HGN test showing intoxication.

Furthermore, Mr. Wilkey (the 911 caller) testified at trial that Leatherman and her husband visited him several months after the incident regarding his upcoming testimony. He reported that Leatherman told him that she was unable to remember what they discussed because she was “whacked out.” This evidence is more than a mere scintilla and is of sufficient substance to permit the question of guilt to go to the jury. (citation omitted)

Putting aside for the moment that I was there, she did not say that or anything like it, I told her lawyer that she did not say that, I asked him to call me as a witness, and he failed to call me as a witness,

The simple fact remains that two scientific tests established to a reasonable scientific certainty that she had no alcohol and no drugs in her blood.

That simple fact also establishes to a reasonable scientific certainty that the deputy and the 911 caller were mistaken or lying when they testified that she appeared to be intoxicated. Further, the HGN test is just a non invasive screening test that indicates possible alcohol or drug impairment that needs to be confirmed by a breath or blood test. Here, the blood test did not confirm impairment and the HGN was not even administered in the proper fashion.

This is a very dangerous precedent, if it is allowed to stand, because it basically says that mistaken and unreliable eyewitness testimony can trump scientific test results that establish innocence to a reasonable scientific certainty.

So much for exculpatory DNA testing . . .

I guess this is the Kentucky Court of Appeals solution to ‘solving’ the alarming, embarrassing, and escalating number of wrongful convictions of innocent people, including many people on death row, as conclusively established by post conviction DNA testing.

Do not attempt to reform the system because that would involve admitting something is wrong. Instead, just disappear wrongful convictions altogether by setting up a false equivalence that a scientific test result is not more accurate and reliable than a lay witness’s opinion and let a jury decide which to believe.

Will the Kentucky State Supreme Court deny Crane’s motion for discretionary review and allow this case to rewrite federal and state constitutional law and ‘solve’ the wrongful conviction problem by ignoring and disappearing it?

Stay tuned.


The Decision From Hell (Part 2)

December 28, 2011

Yesterday, in Part 1 of this post, I critiqued the first part of the Court of Appeals decision affirming the trial court’s denial of her pretrial motion to suppress evidence.

I concluded that the Court of Appeals erred because it improperly relied on evidence (1) obtained after the deputy stopped Crane Station and (2) facts invented by the trial court. The Court of Appeals also (3) erroneously claimed that her appellate lawyer had failed to challenge any of the trial court’s findings of fact. I provided links to the decision by the Court of Appeals and Crane’s Opening Brief on Appeal and her Reply Brief.

In a related post today entitled How Could Judge Taylor Forget Garcia v. Commonwealth, I discussed a decision he wrote reaching the opposite conclusion on a set of materially indistinguishable facts. You may find that to be an interesting and helpful follow-up to Part 1 since he is one the three judges who decided her case. I also referenced Crane’s Petition for Rehearing of the decision by the Court of Appeals just so there is no misunderstanding or confusion regarding whether her lawyer challenged the findings of fact.

This first part of the decision by the Court of Appeals stands for the proposition that a motion to suppress based on an argument that a police officer lacked a reasonable suspicion to stop someone can be decided on the basis of information he acquires after the stop. Likewise an argument that a police officer lacked probable cause to arrest can be decided on the basis of evidence that turns up after the arrest. Both principles are contrary to long established federal and state case law and eviscerate the Fourth Amendment.

Therefore, the Kentucky State Supreme Court must grant discretionary review and reverse the Court of Appeals. If it does not, trial courts across the state will create havoc by following the decision by the Court of Appeals and denying motions to suppress in violation of a long line of state and federal cases. Eventually, the Supreme Court would have to grant review in one of those cases and overrule the Court of Appeals in the Leatherman case.

That is why it is necessary to grant discretionary review.

Today, I will critique that part of the decision that deals with Crane’s statement that her watch had fallen behind the seat during the ride to the hospital and her request for the deputy’s assistance to retrieve her watch for her.

Tomorrow in Part 3, I will deal with the final issue; namely, the decision by the Court of Appeals that the trial court properly denied her motion for a directed verdict of acquittal on the DUI charge. Due to the length of today’s article, I have decided that I should discuss the latter issue in a separate post.

When Deputy McGuire assisted Crane to get out of the back seat of his patrol vehicle at the hospital (because she was handcuffed with her hands behind her back), she told him that her watch had fallen off her wrist and dropped behind the rear seat during the ride. She asked him to please retrieve it for her. That is undisputed.

At the preliminary hearing, McGuire testified that, after they returned to his vehicle following the blood draw, he pulled the seat back, saw the watch and the suspected controlled substance near it, and seized both of them. When her lawyer asked him if he could see the two items before he pulled the seat back, he said. “No.” However, at the suppression hearing, he testified that he saw both items in “plain view” sitting at the top of the seatbelt crack next to where she was sitting when he opened the door to assist her to get out of his vehicle at the hospital.

Those two statements are mutually exclusive. They cannot both be true and there is no question that Crane’s lawyer was entitled to challenge the deputy’s credibility at trial by impeaching him with his prior inconsistent statement under oath at the preliminary hearing. Nevertheless, the trial judge sustained an improper objection by the prosecutor to that line of inquiry preventing him from eliciting the inconsistent statement.

Why did the trial judge do that?

Before jury selection, the trial judge granted the prosecutor’s motion in limine (i.e., at the beginning) for an order preventing the defense from introducing Crane’s statement about her watch and her request for his assistance in retrieving it on the ground that her statement was inadmissible hearsay.

I have addressed this issue previously in Hearsay, Part Deaux.

The judge’s ruling was improper because the statement was not hearsay, since it was not offered to prove the truth of the matter asserted in the statement. It was offered to show that, as a result of something she said (and it really does not matter what it was, which is why it was not offered to prove the truth of the matter asserted), he pulled the seat back to look for her watch and found both the watch and the suspected controlled substance in proximity to each other.

There is nothing misleading or improper about allowing the jury to hear that evidence because that is the way it happened, according to the deputy’s testimony at the preliminary hearing.

Instead, the jury only heard the deputy’s trial version of his discovery, which was that he found her watch and the suspected controlled substance in plain view on top of the rear seat in the seatbelt crack right next to where she was sitting. To make matters worse, in his final summation the prosecutor said the proximity of her watch to the suspected controlled substance in plain view amounted to her “autograph” on the controlled substance and she had not offered any explanation for how they happened to be in plain view together in the seatbelt crack right next to her.

It’s not surprising in the least that the jury found her guilty of possession and evidence tampering for attempting to conceal the rock of crack. Would the jury have convicted her if they knew that the deputy found the rock not in plain view, but under his back seat because she asked him to retrieve her watch from under the seat?

I do not believe the jury would have convicted her because who would ask a police officer to retrieve their watch from under the seat, if they had lost the watch while attempting to slough a controlled substance?

That was her defense, but the trial judge took it away from her with his ruling in limine.

The Court of Appeals did not decide whether her statement about her watch and request for his assistance to find her watch was inadmissible hearsay. Instead, it dodged the issue by saying the error, if any, was harmless because she could have testified about her statement and request. Indeed, the Court of Appeals noted that the trial judge told her that she could testify about it.

Why does this not make any sense?

(1) If the statement were hearsay, it is not admissible, whether or not she testifies. That is the law and the trial judge cannot create an exception that does not exist.

(2) She had a constitutional right under the Fifth Amendment not to testify and a right to have the judge instruct the jury that it cannot hold her silence against her. In other words, silence is not evidence of guilt.

(3) The judge’s unlawful exception was a manipulative and coercive effort to force her to testify against her will in violation of her Fifth Amendment right to remain silent and not have her silence held against her.

(4) If she had testified, the jury would have been presented with a classic he-said-she-said controversy in which he said he found her watch and the rock together in plain view at the top of the seatbelt crack on the seat right next to her, and she said he found it under the seat after she asked him to look for her watch. Not even the longest long shot Louie at Hialeah would put a fin on her fate in such a swearing contest.

(5) Who could deny that the odds on the outcome of that he-said-she-said swearing contest would change dramatically, if the jury found out that the deputy had previously testified under oath at the preliminary hearing, about a week after her arrest, confirming her statement. The suppression hearing was five months after her arrest and the trial was 18 months after her arrest, by the way. There can be little doubt that the jury would have believed her and disbelieved his plain-view testimony. Then their whole case falls apart.

(6) That is why her lawyer’s attempt to cross examine the deputy by impeaching him with his prior inconsistent statement under oath at the preliminary hearing was proper and legitimate.

To call this error harmless is disingenuous and absurd. But guess what? That is not even the right test. Why is it not the right test?

The trial judge’s order in limine and his ruling preventing her lawyer from impeaching the deputy with the deputy’s prior inconsistent statement under oath at the preliminary hearing took away her defense.

A defendant in a criminal case has a constitutional right to put on a defense and her right to do that was denied to her by the trial judge’s rulings and aggravated by the prosecutor’s closing argument in which he commented on her silence, which is forbidden by the Fifth Amendment. He also attempted to switch the burden of proof over to her to prove her innocence, which is a denial of due process of law under the Fifth and Fourteenth Amendments.

When the court and a prosecutor violate a defendant’s constitutional rights, the test presumes the error affected the outcome of the trial and the prosecution must rebut that presumption by proof beyond a reasonable doubt that it did not.That is a far different test from the one employed by the Court of Appeals.

There is no way the prosecution can meet its burden in this case. Therefore, the Court of Appeals must be reversed on this issue.

Until tomorrow . . .


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