Articles Posted in Appeal

Today marks the 21st anniversary of the landmark Supreme Court case of Ohio v. Robinette[1]. Ohio v. Robinette[2] stands for the simple proposition that the 4th amendment does not require police officers to inform drivers in a traffic stop that they are free to go before asking questions unrelated to the purpose of the traffic stop.

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The Case[3]

The case behind Ohio v. Robinette is relatively mundane. On a stretch of I70 near Dayton Ohio, Robert D. Robinette was pulled over for a traffic stop on August 3, 1993. Mr. Robinette was issued a warning for speeding. The officer then asked “One more question before you get gone: Are you carrying any illegal contraband in your car? Any Weapons of any kind, drugs, anything like that?”. Mr. Robertte responded “no”. The officer then asked if he could search the car, which Mr. Robinette consented to. The officer subsequently found a small amount of marijuana, and a single pill of ecstasy. Mr. Robinette was arrested and charged for possession of controlled substance.

Today marks the 56th anniversary of the landmark Supreme Court decision in Hamilton v. Alabama[1]. Hamilton[2] stands for the simple proposition that the 14th amendment due process clause incorporates your sixth amendment right to counsel against the states, meaning you must be allowed to have a lawyer at your arraignment.

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The Case

The case behind the Hamilton decision is stunning for the nature of the crime at the center of the case. In the mid 1950’s Mr. Hamilton was arrested and charged with Burglary with intent to Ravish which at the time was a capital offense. Mr. Hamilton, being indigent was unable to afford an attorney. This case occurred before the landmark case of Gideon v. Wainwright[3][4] which guaranteed indigent people the right to counsel. As such, Mr. Hamilton was not given an attorney, and at his arraignment Mr. Hamilton plead not guilty.

Today marks the 27th Anniversary of the landmark Supreme Court case of Perry v. Louisiana[1]. Perry stands for the proposition that you cannot forcibly medicate an individual so they are competent to be executed.

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The Case[2]

The case behind Perry is quite bizarre. Only the evening of July 17th, 1983 Michael Owen Perry entered the unlocked home of his cousins Randy Perry, and Brian LeBlane. Mr. Perry shot and killed both his cousins, before leaving the home, crossing the street and breaking into his parents’ home. Mr. Perry waited for his parents to return, and when they returned home along with their two-year-old grandson Anthony Bonin, Mr. Perry shot and killed all three. Mr. Perry then stole $3,000 worth of cash and fled. Oddly, police found a list of intended victims at the crime scene, with the list including Justice Sandra Day O’Conner[3] and musician Olivia Newton-John[4]. Neighbors and family members said that Mr. Perry had always been unstable, and he was obsessed with Oliva Newton-John’s performance in the movie Grease[5]. Two weeks later, Mr. Perry was arrested in Washington D.C just miles away from the Supreme Court[6].

Today marks the 98th anniversary of the controversial case of Abrams v. United States[1]. In Abrams[2], the Supreme Court upheld the convictions of five defendants under the Espionage Act of 1917. The Court expressly rejected the defendant’s argument that their first amendment rights had been violated by the Espionage Act. This case is particularly noteworthy because revered Justice Oliver Wendell Homes[3]; the author of the opinions which had originally upheld the Constitutionality of criminalizing free speech against the war effort in three prior Court cases, dissented against the majority.

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The Case

The case behind Abrams was a product of a different time in American culture and history. On August 12, 1918, just three months before the end of fighting in WWI, Hyman Rosansky was arrested for throwing flyers out of the 4th floor of a hat factory. The flyers, one in English and one in Yiddish called for a general strike by workers, a reduction in the production of munitions being sent to aid White Army soldiers fighting Soviet forces in the Russian Revolution. Police arrested Mr. Rosansky for violating the Sedition Act of 1917, which criminalized the “willfully utter, print, write, or publish, any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States, or willfully urge, incite, or advocate any curtailment of the production of things necessary to the war efforts.”. Police interrogated Mr. Rosansky for weeks. With Mr. Rosansky’s help, police also arrested Mollie Steimer[4], Jacob Abrams, Hyman Lachowsky, Jacob Schwartz, Gabriel Prober, and Samuel Lipman. The group was all Russian, Jewish immigrants to America and avowed anarchist.

Today marks the 109th anniversary of the devastating Supreme Court case of Twining v. New Jersey[1]. Twining[2] was a landmark case which established a clear path of incorporating Constitutional rights against the state via the 14th amendment, while simultaneously rejecting the incorporation of the 5th amendment right against self-incrimination.

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The Case[3]

The case behind this landmark decision was sadly all to common in this era of criminal justice. Mr. Albert C. Twining and Mr. David C. Cornell bank directors of the Monmouth Trust & Safe Deposit Company were both indicted on charges of bank fraud. At trial both men chose to not take the stand at trial. At that time in New Jersey the law allowed for a jury instruction which allowed the jury to make an adverse inference form a defendant choosing not to testify at trial[4]. This effectively meant that juries were instructed to find guilt from a defendant exercising their 5th amendment right against self-incrimination. New Jersey was one of the few states that didn’t have a state constitution that allowed for the right against self-incrimination. Both men were found guilty and both men appealed arguing their 5th amendment right against self-incrimination had been violated by the New Jersey law.

Today marks the 13th anniversary of the landmark Supreme Court case of Leocal v. Ashcroft[1]. Leocal[2] stands for the proposition that DWI crimes which lack mens rea, or only require proving negligence are not “crimes of violence” which trigger deportation.

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The Case

The case behind Leocal is relatively mundane. Josue Leocal a citizen of Haiti and lawful permanent resident of the United States since 1987 was arrested in November of 2000 for felony Driving Under the Influence (DUI)[3] and causing serious bodily injury. Mr. Leocal plead not guilty to both counts, but was found guilty of both offense and sentenced to two and a half years in jail. While in jail, in October 2001, Immigration and Naturalization Service began deportation proceedings began under section 237(a) of the Immigration and Nationality Act. The judge held that Mr. Leocal’s DUI was a “crime of violence”, and thus an aggravated felony which opened Mr. Leocal to deportation, denied Mr. Leocal’s application for relief, and ordered him deported to Haiti. Mr. Leocal appealed the ruling, and in August 2002 the Board of Immigration Appeals sustained the judge’s ruling and ordered Mr. Leocal deported. In November 2002, Mr. Leocal was deported to Haiti. From Hatit, Mr. Leocal appealed the ruling. However, in a 11th Circuit Court of Appeals Opinion had held that a DUI was an aggravated felony, and as such the court had no jurisdiction to review the lawfulness of the deportation order. The Supreme Court granted cert in 2004.

Today marks the 85th anniversary of the landmark Supreme Court case of Powell v. Alabama[1]. Powell[2] is one of the cases in which the Supreme Court laid out the basic due process requirements of a fair trial in state courts including right to effective appointed counsel in capital offenses, fair time to prepare for trial, and fair hearing. This case proved to be a monumental move for the Supreme Court, which signaled a progressive shift to expanding constitutional rights for defendants in criminal trials.

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The Case[3]

The case behind the monumental decision of the Supreme Court required a monumental remedy. On March 25th, 1931, a fight broke out aboard a freight train between a group of poor black and white youth who both had not paid for the ride. All but one of the white youths was thrown from the train just over the Alabama state line, and these boys promptly reported the incident to local law enforcement. The nine-black youths Charlie Weems, Ozie Powell, Clarence Norris, Olen Montgomery, Willie Roberson, Haywood Patterson[4], Andrew (Andy) Wright, Leroy (Roy) Wright and Eugene Williams were detained when they reached the town of Scottsboro Alabama[5].

iStock_000002633881XSmall.jpgThe highest criminal court in Texas recently set aside the judgment of Rolando Garcia, who had been convicted a third degree felony offense of possession of marijuana. Mr. Garcia’s judgment carried with it a prison sentence of three years. However, the only reason Mr. Garcia had pleaded guilty and accepted the plea deal of a three- year sentence was because the prosecutor had charged Mr. Garcia with the offense of felony possession. Despite the charge of felony possession, laboratory testing of the substance involved in Mr. Garcia’s case revealed that the prosecutor could not prove Mr. Garcia actually possessed a felony quantity of marijuana.

As a result of the revelation by the laboratory testing, the parties in this case agreed that Mr. Garcia would not have pleaded guilty in exchange for a three-year sentence if he had known that the prosecutor could only have proven Mr. Garcia possessed merely a misdemeanor quantity of marijuana. Mr. Garcia’s defense argued to the Texas Court of Criminal Appeals that Mr. Garcia’s guilty plea was involuntary because he is actually innocent of the felony offense to which he pleaded guilty.

In response to Mr. Garcia’s argument, the Texas Court of Criminal Appeals granted a writ based on actual innocence.

iStock_000007696540XSmall.jpgThis article is for those who know friends and family who have been convicted of possession of marijuana or if you yourself are dealing with a conviction. If you have a conviction and you want to challenge your case, you can fight your case through an appeal. The appellate process is exceptionally complicated and can be a rather long process. Moreover, there are many venues to appeal your case.

A writ of actual innocence is an argument based on newly discovered evidence relating to your case. 38 Tex. Jur. 3d Extraordinary Writs § 78. There are two types: first there is the Herrera claim, which is claim that you are innocent based solely on newly discovered evidence; second there is a Schlup claim, which argues that a conviction should be overturned due to constitutional problem. A Herrera claim is interesting because it usually involves junk science or faulty laboratory procedures. The case of Ex Parte Garcia is a perfect example of how this writ can overturn your conviction.

Garcia’s conviction was based on a guilty plea. Ex parte Garcia, AP-76,990, 2013 WL 1182735 (Tex. Crim. App. Mar. 20, 2013). The state charged Garcia with the offense of possessing no more than five and less than fifty pounds, which is a third degree felony. He pleaded guilty and decided not to appeal his conviction. However, after he plead guilty, laboratory testing determined that the state could only have proved that he possessed a misdemeanor amount of marijuana. After Garcia learned of this information, he argued that he would never have pleaded guilty to the charge and that his plea was involuntary. The Court granted Garcia relief and remanded the case, which means that the trial court would have to re-hear the case in light of the new evidence. In sum, if you have a conviction for possessing marijuana, have your attorney examine all the evidence to see if an actual writ of innocence would be appropriate for you and your case.