Atlanta Federal Criminal Attorney
Richard A. Grossman
Richard A. Grossman, Trial Attorney
66 Lenox Pointe, NE
Atlanta, GA 30324
678-358-6555
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Archive for the ‘Violent Crimes’ Category
Prominent N.Y. Law Firm’s Failure to Meet Filing Deadline in Alabama Death Penalty Appeal May Cost Appellant His Life
Cory Maples was convicted of murdering two companions and sentenced to death in a 10 to 2 vote by an Alabama jury. Alabama is the only state that does not provide indigent death row inmates with lawyers to appeal their convictions and sentences. Death row inmates must rely on pro bono lawyers to represent them on appeal in Alabama.
Two associates from Sullivan and Cromwell, a prominent New York law firm, agreed to represent Mr. Maples without charge. However the two associates subsequently left the firm, and when the Alabama court sent two copies of a ruling in Mr. Maples’ case to the firm’s mailroom it sent them back unopened. The firm had not notified the court or the mailroom that new lawyers had stepped in. Furthermore, it appears the firm’s name did not appear on the papers it submitted in Alabama.
Mr. Maples has been unable to persuade the Alabama courts and the federal appeals court in Atlanta to waive the deadline for filing an appeal in his case. The federal appeals court was not persuaded to waive the deadline despite the fact that the Alabama court did not send a copy of the ruling to Mr. Maples, stating in its opinion that, “Maples never requested the clerk to give him personal notice in addition to his counsel.”
Mr. Maples, through another pro bono attorney, has petitioned the U.S. Supreme Court to hear his case. The 11th Circuit opinion is available here
Criminal Suspects Must Now Unambiguously Invoke Their Right To Remain Silent
The 1966 decision in Miranda v. Arizona has been narrowed in a 5-4 opinion by the Supreme Court. Van Chester Thompkins, Jr., was convicted of murder and is serving life in prison without parole. Thompkins was captured more than a year after the shooting that resulted in his conviction. He was questioned by detectives for almost three hours. There was no dispute he was given his Miranda warnings at the beginning of the questioning. However Thompkins did not say that he wanted to remain silent or that he did not want to talk with police.
Near the end of the questioning, one officer asked Thompkins whether he believed in God and he said “yes.” The officer then asked “do you pray to God?” Again Thompkins responded “yes.” The officer asked, “do you pray to God to forgive you for shooting that boy down?” Thompkins said “yes” and then looked away. He refused to make a written confession and he refused to sign a Miranda waiver form. The one word confession was used at Thompkins’ trial and he was convicted.
Having lost his appeal in state court, Thompkins’ conviction was eventually overturned in the U.S. Court of Appeals for the Sixth Circuit which ruled that Thompkins had not waived his right to silence, The Court found that Thompkins’ continued silence through the almost three hour long interview indicated that he did not want to waive his rights.
Justice Kennedy, writing for the majority, said that wasn’t enough. Kennedy concluded that “Thompkins did not say that he wanted to remain silent or that he did not want to talk to police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning’. Here he did neither, so he did not invoke his right to remain silent.”
Juveniles Serving Life Sentences Must be Considered for Release if They Did Not Intend to Kill Anyone
By a 5-4 vote the U.S. Supreme Court has ruled that young people serving life sentences must at least be considered for release. Terrance Graham is locked up in a Florida prison for crimes other than homicide. The Court says that it is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder. The opinion is based on the Eighth Amendment’s ban on “cruel and unusual” punishment.
“Life without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convictof the most basic liberties without giving hope of restora-tion, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence….” Justice Kennedy wrote in his majority opinion.
Here is a link to the Graham opinion.
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.”
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
Supreme Court Will Decide Meaning of 924(c) “except clause” with cert Grants in the Third and Fifth Circuits
The Supreme Court has accepted certiorari in Abbott v. United States, 09-479, and Gould v. United States, 09-7073. These cases involve the correct interpretation of 18 U.S.C. 924(c)’s “except clause”. Before listing the various mandatory minimum sentences under the various subsections, the 924(c) contains the proviso, “except to the extent that a greater minimum sentence is otherwise provided under this subsection, or by any other provision of law.”
The argument is that the “except clause” applies when a defendant is being sentenced for a 924(c) violation and some other statute which carries a higher mandatory minimum than the one which applies to the 924(c). This can happen with ten year mandatory minimum drug cases and also with multiple counts of 924(c) (since the second or subsequent carries a 25 year minimum).