Atlanta Federal Criminal Attorney
Richard A. Grossman
Richard A. Grossman, Trial Attorney
66 Lenox Pointe, NE
Atlanta, GA 30324
678-358-6555
Contact Us
Archive for March, 2010
Georgia Supreme Court Rejects Bid to Bar Death Penalty
In a 4-3 ruling the Georgia Supreme Court said the state did not violate Jamie Ryan Weis’ right to a speedy trial. Mr. Weis had been without lawyers for two years because the state lacked the funds to pay for his defense.
Writing for the majority, Justice Melton said the trial court was correct to appoint local public defenders, in spite of the fact that one of these attorneys had a caseload exceeding four hundred and had not maintained the certification necessary to defend death penalty cases.
Writing in dissent, Justice Thompson stated, “If the state wants to seek the death penalty against an indigent defendant, it must provide adequate funds for a full and vigorous defense. The state cannot shirk this responsibility because it is experiencing budgetary constraints.” Justice Thompson added, “The bottom line is that the state should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay.”
Senate Bill Would Reduce Sentencing Disparities in Crack vs. Powder Cocaine
The Senate Judiciary Committee unanimously passed a measure this week to reduce criminal penalties for defendants caught with crack cocaine. The proposed legislation addresses for the first time in two decades a sentencing disparity that has troubled many.
The Senate bill would reduce the sentencing disparity to 18 to 1 for people caught with crack cocaine versus powdered cocaine. The current ratio is 100 to 1, disproportionately hurting African Americans, who are convicted of crack offenses in far greater numbers.
The Senate bill would also increase the amount of crack cocaine required to trigger the 5 year mandatory minimum sentence for possession with intent to distribute from 5 to 28 grams.
The House Judiciary Committee passed a cocaine sentencing reform bill in July that would treat all forms of cocaine the same for sentencing purposes.
Supreme Court’s Speedy Trial Opinion Limits Automatic Exclusion of Time Granted to Prepare Pretrial Motions
The Speedy Trial Act, Title 18 U.S.C. Section 3161, et. seq., requires that a criminal defendant be tried within 70 days of indictment or the defendant’s first appearance in court, whichever is later. Subsection (h) provides for numerous periods of “excludable time.”
In Bloate v. United States (08-728) The Supreme Court held that the time granted to prepare pretrial motions is not automatically excludable from the 70-day limit under subsection (h)(1). Instead, such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7). Subsection (h)(7) provides that delays “resulting from a continuance granted by any judge” may be excluded, but only if the judge finds that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial” and records those findings.
New 11th Circuit Opinion re: Drug Quantity and Statutory Mandatory Minimums
In US v. Bacon, No. 08-10463, the court vacated Defendant Sheikel Jamison’s sentence. Jamison was convicted of participating in a drug trafficking conspiracy under 21 U.S.C. section 846. There was a special jury verdict that the conspiracy involved more than 5 kilograms of cocaine and Jamison was sentenced to the statutorily mandatory minimum sentence of 10 years imprisonment.
On appeal Jamison argued that his sentence must correspond to the quanitity of drugs attributable to him.The court agreed, concluding that Jamison must be sentenced based on an individualized finding, supportable by a preponderance of the evidence, as to the drug quantity foreseeable by that defendant. Jamison’s sentence was vacated and his case remanded for re-sentencing.
Posted by Richard Grossman
U.S. Supremes Reverse 11th Cir. Armed Career Criminal Act Conviction
The U.S. Court of Appeals for the Eleventh Circuit’s judgment upholding a sentence for possession of ammunition by a convicted felon, which was enhanced under the Armed Career Criminal Act, is reversed where the Florida felony offense of battery by actually and intentionally touching another person does not have as an element the use of physical force against the person of another, and thus does not constitute a violent felony under 18 U.S.C. section 924(e)(1).
The Supreme Court released its opinion in Johnson v. United States, no. 08-6925, reversing the Eleventh Circuit and finding that because the Florida offense of battery by offensive touching does not require the use of physical force, it does not qualify as an ACCA predicate under 935(e)(2)(B)(i).
The Court held that it was bound by the Florida Supreme Court’s interpretation of the statutory elements of the offense, an important ruling for anyone dealing with state offenses that have been narrowed by the state’s courts. The Court defined “physical force” for purposes of ACCA as requiring “violent force — that is, force capable of causing physical pain or injury to another.” The Court refused to remand to allow the government to argue that the battery satisfied 924(e)92)(B)(ii)’s residual “otherwise” clause, because the government had previously disclaimed reliance on that provision at sentencing.
Posted by Richard Grossman
Read Johnson v. United States http://www.supremecourtus.gov/opinions/09pdf/08-6925.pdf