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June 22nd, 2009UncategorizedThe Innocence Project of New York has filed an appeal of a conviction of an Allegheny County man found guilty in 1992 of brutally raping a New Kensington woman, saying prosecutors used bogus science at his trial.
John Kunco is now 43 and serving a 45- to 90-year prison sentence. He was found guilty in a four-day trial in 1992 that heavily relied on testimony from forensic dentists concerning a bite mark found on his victim's shoulder.
Experts, using science available to them in the early 1990s, found the bite marks were made by Kunco.
But Innocence Project lawyers, in court documents filed last week in Westmoreland County, said that science should be disregarded. A study released in February by the National Academy of Sciences found that bite mark comparison is not reliable.
"Simply put, Kunco's trial was polluted and contaminated with false, misleading and grossly unreliable bite mark evidence, and as a result this court can have no confidence in the jury's decision to convict Kunco," states the appeal written by Innocence Project lawyer Craig M. Cooley.
Kunco had worked as maintenance man at the apartment where his 55-year-old accuser lived. During the trial, prosecutors presented evidence that he broke into her home on Dec. 16, 1990, blindfolded her with her own underwear, shocked her with a frayed electrical cord, raped her, then forced her to perform painful and degrading sexual acts.
The victim was able to identify Kunco by virtue of a recognizable lisp.
Five months after the woman was attacked, an ultraviolet photograph of her back was enlarged and healed bite wounds were compared to a mold of Kunco's teeth. Forensic experts testified at trial that the healed wounds matched Kunco's dental impression.
Defense attorneys never challenged that testimony during the trial, but a subsequent appeal did. That appeal eventually was taken to the U.S. Third Circuit Court of Appeals, where it was rejected in 2003.
Westmoreland County Assistant District Attorney Wayne Gongaware, who tried the case against Kunco in 1992, said Friday that he is confident the right man is in prison for the rape.
"We had two different experts. They independently reviewed the evidence and found it was his bite marks," Gongaware said.
The Innocence Project, a private nonprofit agency based in New York, was created in 1992 and has worked on high-profile cases in which DNA could be used to overturn a conviction.
Kunco has maintained his innocence since his arrest. After the federal appeals court ruling Kunco contacted the Innocence Project, Cooley said on Monday.
In January, Westmoreland County prosecutors agreed to DNA testing of some evidence used against Kunco, including an electrical cord and the victim's girdle. Test results have not been returned.
"We're testing to find some other male DNA that we can hopefully use to exonerate John. If the results are inconclusive, then we will have to find another available avenue of appeal," Cooley said.
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June 22nd, 2009Uncategorized
The unemployment rate remains highest among people of color. Black unemployment is now at over 12.6 percent, and the jobless rate for young black men is considerably higher. We speak to Dedrick Muhammad, co-author of the new report “State of the Dream 2009: The Silent Depression” published by United for a Fair Economy.
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June 21st, 2009Uncategorized(1) Can a defendant be placed on probation for a term exceeding what the original sentence would have been,i.e. (2) in a class 1 misdemeanor can the defendant be put on probation for three years when the sentence is 12 months with 11 suspended for three years, with "indefinite" local probation? and (3) how long would the [indefinite] probation be, three years or 12 months?[1]It's an interesting question and the waters are muddied by the fact that there are two separate things which occur under Virginia law, the period of probation and the period of the suspended sentence. As best I can define the two, the period of a suspended sentence is how long an offender can be hauled back into court to receive time "for any cause the court deems sufficient" (§ 19.2-306) and probation is the period of time the offender has someone specifically assigned to be her caretaker. Unfortunately, in both statutes and judicial decisions, there has been a loose usage of these terms. Sometimes they are used in parralell, sometimes they have separate meanings, and sometimes they seem to be used as synonyms. It confuses things.
[2] A defendant can have his sentence suspended for as long as the judge determines to be "a reasonable time, having due regard to the gravity of the offense." Va Code § 19.2-303.1. In other words, if the judge decides an offender's brandishing a firearm misdemeanor needs to have the sentence suspended for a period of 20 years, the judge can so order.
[3] Indefinite probation usually means that probation shall end at the discretion of the probation officer after certain conditions have been met. I couldn't find any limits to the length of probation, but logic would seem to indicate it could go no longer than the period during which the sentence is suspended.
[4] A common practice in Virginia courts is to usually limit most misdemeanors to a single year period of time suspended and in cases that the judge sees as more egregious three years of time suspended. I cannot find any statutory reason for this and suspect it may be ensconced in Virginia law via Smith v. Underwood, 1985, Va. App. No. 0316-85. In this decision a habeas was rejected because it was based upon new claims, but the court also accepted, without any discussion, 3 years time suspended on a misdemeanor.[5] Furthermore, we find no ambiguity in the June 3, 1982, sentencing order that would support Smith's claim that the misdemeanor sentence suspension could not be revoked. Its terms are clear. Both the felony and misdemeanor sentences were suspended and Smith was placed on probation for a period of three years.
[6] Nevertheless, nothing in the statutes or any cases I've seen seems to limit the length of time a person can have his sentence suspended if the judge is specific about the length.
[7] If the judge is not specific about the length of time for the suspension it defaults to the length of the maximum potential sentence for the crime (ie: 1 year for petit larceny & 20 years for grand larceny). § 19.2-306. However, a judge can extend both probation and suspension. Under § 19.2-306(C), if a judge "finds good cause to believe that the defendant has violated the terms of suspension" the suspension is revoked and the sentence is imposed. However, the judge can resuspend the sentence - leaving him the option of setting a new length of time for the suspension. Under § 19.2-304, the judge can alter probation upon the convening of a hearing; as the statute states no other conditions, it appears that the judge has complete discretion in this. -
June 21st, 2009Uncategorized
An ABC News article provide an effective victim-centered perspective on the developing new that Bernie Madoff may be nearing a plea deal in his prosecution for his record-setting frauds. The piece is headlined " Calling All Victims: Madoff Expected to Plead Guilty; Criminal Case of the $50 Billion Fraudster Nearing Conclusion," and here are some notable excerpts:
In the government's clearest statement yet that a deal in the criminal case of Bernard Madoff is close to being made, a victims' rights motion was filed Friday evening by the U.S. attorney in the case that indicates Madoff will appear next Thursday in a plea proceeding.
U.S. District Court Judge Denny Chin signed an order granting a request that the thousands of victims of the alleged Ponzi scheme will receive online notification of the court proceedings. They will have to periodically check a special web site set up for the criminal case proceedings.
Any victim who wishes to be heard in Thursday's proceeding will need to notify the government by Wednesday March 11th at 10:00 a.m. The internet address for victims to contact is: usanys.madoff@usdoj.gov....
It was reveleaed Friday that federal prosecutors have apparently reached a plea deal with the accused con man, in which he will admit to his role in the biggest financial crime in American history. The deal does not specify how much time Madoff would spend in prison, nor does it exclude the prosecution of Madoff's family or former associates, lawyers familiar with case said.
One former federal prosecutor says he doubts the deal will go easy on Madoff and that the disgraced financier will be spending a long time behind bars. "I doubt very seriously whether there would be any concession by the government as to jail time or diminished jail time for Mr. Madoff," said Sean O'Shea. "Given the sentencing guidelines in a fraud of this type, I think you're looking at a man who is 70 years old, I think you're looking at the rest of his natural life."...
Madoff's investors are not happy to hear the he may cut a deal. 92-year old Zsa Zsa Gabor is one of them. Her husband Prince Frederick Von Anhalt said the couple lost their $10 million life savings to Madoff.
"It's not enough" for Madoff to just plead guilty and go to jail, Von Anhalt told ABC News. "That's what he wants, he wants to go to jail, his life is over. He wants to protect his family, his wife, his children." Von Anhalt also wants to see Madoff's wife, Ruth, and his sons arrested and put in jail. "What nerve she has, to say that she wants to keep all that money. That's our money! Screw her!"
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June 20th, 2009UncategorizedIn In Re Davis, No. 08-16009 (11th Cir. 2009) (2-1, Barkett, J. dissenting), the Court held that Davis failed to meet the statutory requirements of AEDPA for a second or successive habeas petition, and affirmed the district court’s dismissal of his petition that challenged his death sentence for a 1989 murder.
In his first federal habeas petition, Davis asserted "actual innocence" as a gateway to present otherwise defaulted constitutional challenges to his Georgia state conviction. After this first petition was denied, Davis brought a second petition, which asserted "actual innocence" as a stand-alone basis for relief, relying on witness recantations and evidence pointing to another culprit.
The Court noted that, under AEDPA, the factual predicate for a second or successive petition "could not have been discovered previously." Here, Davis was aware of the factual predicate – except for one new affidavit, which the Court found insufficient to negate the evidence supporting the jury’s verdict of guilt. The Court noted that AEDPA does not provide that actual innocence claims, standing alone, can support a second habeas petition: the statute requires a showing of a constitutional violation as well. Further, even if the statute allowed such claims, here Davis’ evidence did not suffice to establish, as the statute required, that "no reasonable fact-finder would have found the applicant guilty." The Court noted that "recantations are viewed with extreme suspicion by the courts." -
June 20th, 2009Uncategorized
A new study underscores the severity of racial bias in drug-related law enforcement. According to Human Rights Watch, African Americans were arrested as much as five-and-a-half times as whites on drug charges every year for the past three decades. The trend dates back to 1980, the earliest date with complete data.
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June 19th, 2009UncategorizedIn United States v. Aquino, 2009 WL 279274 (Feb. 6, 2009), the defendant received and retained documents containing classified information government information pertaining to the current regime in the Phillipines, United States military strategy and training methods, and ongoing criminal investigations. Aquino pled to a single count under 18 U.S.C. § 793(e), which prohibits the willful transmission, communication, or retention of documents relating to the national defense of the United States by an unauthorized possessor. At the hearing Aquino admitted to retaining the documents and knowing the documents were classified and could be used to injure the United States or aid a foreign government.
At sentencing, the parties disagreed over which of the relevant guideline sections, § 2M3.2 (which carries a higher base offense level and covers statutes that proscribe diverse forms of obtaining and transmitting national defense information and carries a mens rea requirement that must have intent or reason to believe the information would injure the United States or be used to the advantage of a foreign government) or § 2M3.3 (with a lower offense level and applies to a range of statutes that proscribe various offenses involving the transmission or communication of national defense information and the disclosure or receipt of classified information) applied.
The district court applied §2M3.2, based mostly on the mens rea requirement. The Third Circuit reversed, holding that the applicable guideline section was §2M3.3, despite defendant's admission that he knew the documents could be used to injure the United States or to the advantage of a foreign nation. The Court found that the §2M3.2 mens rea requirement applied only to intangible information (as opposed to the tangible documents here) and required transmission rather than retaining of the information. Thus, §2M3.3 applied. -
June 19th, 2009Uncategorized
The New York State Assembly is set to vote Wednesday on legislation that would allow judges to send drug offenders to substance abuse treatment instead of prison. The legislation would also allow thousands of prisoners jailed for nonviolent drug offenses to have their sentences reduce or commuted. It’s the latest step in a long campaign to repeal the draconian Rockefeller laws. The laws impose lengthy minimum sentences on drug offenders, even those with no prior convictions. The laws have disproportionately targeted people of color, while giving prosecutors de facto control over how long convicts are jailed.
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June 18th, 2009UncategorizedIn Hodge v. United States, 2009 WL 235674 (Feb. 3, 2009), the Circuit held that defendant's ineffective assistance claim in his untimely supplemental memorandum and his right-to-appeal claim in his original habeas motion were tied to a common core of operative facts. Thus, the ineffective assistance claim relates back to his timely habeas motion, where both claims concerned erroneous advice provided by defendant's counsel regarding filing deadline for appeal. Failure to file notice of appeal was ineffective assistance.
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June 18th, 2009Uncategorized
Beginning now, California’s Franchise Tax Board (FTB) will take action which helps the FTB bring Limited Liability Companies (LLCs) into tax compliance and reduce the State's budget deficit.
Read more about this in the Los Angeles Times article from January 12, 2009.
California’s FTB and California’s Secretary of State (SOS) are working together to implement a suspension/forfeiture process for Limited Liability Companies (LLCs).
The FTB will suspend/forfeit the rights, powers and privileges of LLCs for non-payment of taxes, penalties, or interest, and/or failure to file a return (California’s Revenue and Taxation Code Sections 23301, 23301.5 and 23304.1(d)). The LLC suspension/forfeiture process will be very similar to the one for corporations.
Implementing the suspension/forfeiture process will have a dramatic effect on LLCs that have failed to meet their filing and payment obligations. We will send notification to all entities at their last known addresses, 60 days before imposing suspension/forfeiture.
Non-registered LLCs acting and filing in California will be subject to contract voidability. The reasons for contract voidability are the same as for suspension/forfeiture: failure to file a return, and/or failure to pay taxes, penalties, or interest.
