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July 2014 Archives

DNA helps clear man's name from rape charge after 24 years

By NAHEED RAJWANI
Michael Phillips, 57, is surrounded by friends, family and fellow exonerees on Friday, moments after he was cleared of a 1990 sexual assault charge for which he served 12 years. Phillips, who has sickle cell anemia, was released from prison in 2002 and now lives in a nursing home.

Another Federal Child Pornography Sentencing That Questions the Enhancements

Tim Zerillo has lectured nationally on issues related to defending federal computer crimes. There was an interesting opinion this week regarding enhancement issues. This is fairly complicated from a legal perspective, but for those of you who understand these issues, I enclose it for your consideration.

NEWS RELEASE - U.S. SENTENCING COMMISSION UNANIMOUSLY VOTES TO ALLOW DELAYED RETROACTIVE REDUCTION IN DRUG TRAFFICKING SENTENCES

WASHINGTON, D.C. (July 18, 2014) - The United States Sentencing Commission voted unanimously today at a public meeting to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively, meaning that many offenders currently in prison could be eligible for reduced sentences beginning November 2015. The Commission voted unanimously in April to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types, which may mean lower sentences for most drug offenders going forward. Today the Commission decided that judges could extend that reduction to offenders currently in prison, but with a requirement that reduced sentences cannot take effect until November 1, 2015. Under the guidelines, no offender would be released unless a judge reviews the case to determine whether a reduced sentence poses a risk to public safety and is otherwise appropriate. "This amendment received unanimous support from Commissioners because it is a measured approach," said Judge Patti B. Saris, chair of the Commission. "It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety." Congress has until November 1, 2014 to disapprove the amendment to reduce drug guidelines. Should Congress choose to let the guideline reductions stand, courts could then begin considering petitions from prisoners for sentence reductions, but no prisoners could be released pursuant to those reductions before November 1, 2015. "The delay will help to protect public safety by enabling appropriate consideration of individual petitions by judges, ensuring effective supervision of offenders upon release, and allowing for effective reentry plans," Saris said. The Commission is tasked by law with minimizing the likelihood that prison populations exceed capacity. Currently, the Federal Bureau of Prisons population exceeds capacity by around 32%. Under today's change addressing this problem, the Commission estimates that:  46,290 offenders would be eligible to have their cases reviewed by a judge to determine if their sentences should be reduced;2  Offenders eligible for a reduction could have their sentences reduced by an average of 25 months, or 18.8%. They would still serve 108 months, on average. Over time, these sentence reductions could result in a savings of up to 79,740 bed years (a bed year is the equivalent of one federal prisoner occupying a prison bed for a year).The year-long delay in implementation of this change will allow judges more time to consider whether each eligible offender is an appropriate candidate for a sentence reduction and will give the government adequate time to object to sentence reductions when prosecutors believe public safety may be at risk. The delay will also give time for the federal Office of Probation and Pretrial Services to prepare for effective supervision of released offenders in the short term and will enable the Federal Bureau of Prisons to ensure that each prisoner receives transitional services including placement in halfway houses to help increase the chances of successful reentry into society. "We listened very closely to the law enforcement community, and the amendment we voted for today seeks to address concerns about public safety," Saris said. The Commission studied offenders released early after a similar 2007 amendment to the guidelines reducing sentences for crack offenders and found that those offenders were no more likely to reoffend than offenders who had served their original sentences. The amendment the Commission approved in April, which was supported by the Department of Justice, the Judicial Conference, and many others, generally reduces by two levels the base offense levels for all drug types in the Drug Quantity Table in guideline §2D1.1, which governs drug trafficking cases. The drug guidelines under the amendment would remain linked to statutory mandatory minimum penalties. The issue of whether to make the change to drug sentences retroactive drew more than 60,000 letters during a public comment period, including letters from members of Congress, judges, advocacy organizations, and individuals. The letters overwhelmingly favored retroactive application of the reduction in drug sentences. The Commission also heard testimony for and against retroactivity from a wide variety of experts at a June public hearing. "The step the Commission is taking today is an important one," Saris said, "but only Congress can bring about the more comprehensive reforms needed to reduce disparities, fully address prison costs and populations, and make the federal criminal justice system work better."

Do You Have to Reveal a Criminal Record When Applying for a Job? By Hal M. Bundrick

NEW YORK (MainStreet) - Convicted criminals dread the box. That's the job application question that says, "Check here if you've been convicted of a crime." The National Employment Law Project (NELP) estimates that 70 million people in the U.S. have some sort of criminal record, and 700,000 return to their communities from prison each year. Some have completed vocational training and education and desperately want a job -- but many are immediately removed from consideration once revealing a criminal past.

State v. Logan 2014 ME 92

Justia.com Opinion Summary:  After a jury trial, Defendant was convicted of unlawful sexual contact, unlawful sexual touching, and two counts of assault. The Supreme Court affirmed, holding (1) the trial court did not err in limiting Defendant's cross-examination of the victims' mother regarding sexual abuse that the mother experienced as a child; (2) the trial court did not abuse its discretion in denying Defendant's motion for a mistrial after a fragment of a police interview that the parties had agreed to redact was mistakenly played for the jury; (3) the trial court did not commit obvious error in failing to excuse or inquire further of a juror who worked for the same company as Defendant after finding that the juror and Defendant did not recognize each other; and (4) there was sufficient evidence to support the jury's verdict.

Can You Back Out of a Settlement Agreement? July 14, 2014 by Brett Snider, Esq.

Can you back out of a settlement agreement? After agreeing to a settlement in your injury case, you may have a change of heart. Perhaps your medical bills have increased unexpectedly or the insurance policies involved are not enough to cover your treatment or recovery.

Can a Jury Believe What It Sees? Videotaped Confessions Can Be Misleading By Jennifer L. Mnookin July 13, 2014

LOS ANGELES - LAST week the F.B.I., the Drug Enforcement Administration and other federal law enforcement agencies instituted a policy of recording interrogations of criminal suspects held in custody. Only a minority of states and local governments have a similar requirement, but the new rule, which applies to nearly every federal interrogation, will most likely spur more jurisdictions to follow suit. It's not far-fetched to think that such recordings may soon become standard police practice nationwide.

State v. Kittredge 2014 ME 90

Justia.com Opinion Summary: Defendant's probation officer asked Defendant to come to the probation office. When Defendant complied, he met two state troopers who sat down with him and asked him about a theft at the victim's apartment. After the interview, Defendant made incriminating statements. Defendant was charged with burglary and theft by unauthorized taking or transfer. Defendant moved to suppress the statements he made to law enforcement. The trial court determined that Defendant spoke voluntarily and that he was not in custody, and therefore, Miranda warnings were not required. Defendant was subsequently convicted of theft by unauthorized taking or transfer. The Supreme Court affirmed, holding (1) the trial court did not err in determining that Miranda warnings were unnecessary because Defendant was not in custody; (2) the trial court did not err in concluding that the confession was voluntary; and (3) the evidence was sufficient to support the conviction.

Timothy Zerillo Motion to Suppress Success in York County

Attorney Tim Zerillo of Zerillo Law, LLC won a Motion to Suppress this week in the York County Superior Court. At issue was the Defendant's statements to police after his Miranda warnings were issued. Attorney Zerillo argued, after cross-examination of the officer, that the police had not adequately documented the waiver of Miranda by his Client, and that the State could not prove the waiver of Miranda as a result. Winning this Motion to Suppress meant that the Defendant's oral statements and written statements after his arrest were suppressed and cannot be used at trial.

Tim Zerillo's Client Federal "Charge Bargain"

In the United States District Court in Portland, Maine today, Attorney Tim Zerillo's client was sentenced to a 10 month sentencing in a Tampering with a Witness case, representing the lowest end of the Sentencing Guideline range. Most significant was the Client had been charged with 2 drug crimes and a Conspiracy to Tamper crime, which were dismissed at sentencing by the Government. It is unusual in Federal cases for the Government in Maine to "charge bargain," that is to agree to dismiss indicted charges. In this case we were able to come to an agreement with the Government to dismiss 3 charges in lieu of a plea and sentencing to the Tampering, resulting in a 10 month sentence for our Client after hearing.

Harrington v. State - 2014 ME 88

Justia.com Opinion Summary: Glen Harrington pleaded guilty in 2012 to eluding an officer and admitted to violating the conditions of his probation. Harrington was sentenced to forty-eight months' imprisonment. The Department of Corrections subsequently determined that Harrington was eligible to receive seven days per month of good-time credits and that Harrington would be eligible to receive an additional two days per month for participation in transition-plan programs. Harrington appealed this determination, arguing that he was entitled, for the entire duration of his sentence, to the two days per month for participation in transition-plan programs. The post-conviction court summarily dismissed the petition on the basis that calculations of good time credits are not reviewable in post-conviction proceedings. Harrington appealed, arguing that his petition did not challenge a "calculation" of the credits but instead challenged the Department's policy of making the credit available to only to inmates at a certain point in their sentences. The Supreme Court affirmed, holding that the post-conviction court did not err in construing the Department's decision as a calculation of good-time credits and dismissing Harrington's petition.