Legal Blog

If you have been convicted of and sentenced for a crime, you have the right to appeal that conviction or sentence. Numerous complex rules set the time and manner in which you must file your appeal. You have a limited window to find a criminal appeals lawyer to take your case. With so many criminal law firms out there, how do you choose the one that can handle your particular case? Your appeal is one of the few ways to have your conviction or sentence overturned, so you have a lot at stake. Choosing the wrong firm may prevent a successful appeal.

Factors To Consider When Picking a Appeal Law Firm

Below are factors to consider in choosing the right law firm for you. No one factor is determinative, and the factors overlap in some instances. The list provides guidance in selecting the firm that can best represent you in a challenging appeal.

• Knowledge: are the attorneys at the firm knowledgeable of the area of law relating to your case? Some lawyers practice in many areas of the law, criminal law included. For simple criminal cases at the trial court level, hiring such a lawyer might make sense. For a criminal appeal, however, you want a firm that has in-depth knowledge of the procedural and substantive law related to criminal appeals. The timelines, rules, and standards of judicial review are significantly different for an appeal than for a trial. Look for a law firm whose attorneys are schooled in criminal appellate law to obtain the best representation.
• Experience: do the attorneys at the firm have experience in representing clients in your situation? Experience in criminal appeals is key to a successful outcome. Many excellent trial lawyers are available, and some do appeals. However, you want a law firm or an attorney who has significant experience specifically in appellate work. Such experience shows that the attorney or law firm knows what works and what doesn’t in a criminal appeal and helps to provide the most efficient, effective representation.
• Expertise: do the attorneys at the firm have the expertise to achieve success in criminal appeals? The next factor to consider is the firm’s success in appealing criminal convictions. All the knowledge and experience that an attorney may possess does not always equal success. You want an attorney or law firm whose strategies and arguments result in positive outcomes.

Such success may be reflected in an attorney’s status within the profession. Being a top lawyer in the field or being a speaker or leader in the criminal appeals area of law indicates an expertise that other attorneys or firms may not have. Attorneys are named top lawyers for a reason; their dedication to and success in criminal appeals mean that they provide extraordinary representation.

• Resources: does the firm have the resources to investigate, research, and pursue the appeal? A criminal appeals law firm, large or small, should have an arsenal of resources to investigate your case to maximize the likelihood of success on appeal.

Besides attorneys, look at whether the firm has paralegals, dedicated legal research personnel, and private investigators to handle your appeal. Many facets make up an appeal, and specialized personnel dedicated to handling those different facets help the attorneys to prepare a thorough, well-reasoned appeal that is supported by law and fact.

• Dedication: is the firm dedicated to your case, rather than treating you like just another case in a revolving door? If the law firm takes on every criminal appeal that comes through its doors, your case might fall through the cracks or be handled without the thorough, careful treatment that an appeal warrants. Hiring a firm that represents only select cases increases the firm’s focus on you and your case.
• Edge: does the firm have that “X Factor”? Look for a firm that has something unique to offer, something that gives it an edge over other firms and over the opposition. An attorney’s background can provide this factor. It may seem counterintuitive to select an attorney who was once a prosecutor, for example, but such an attorney would have valuable insight into the strategies of the other side on appeal. Being able to predict and undermine the opposition’s arguments on appeal increases the chances of success.

Contact Spolin Law for Help

With so much at stake, choosing an attorney for your appeal may seem overwhelming. The above factors may help you in selecting an attorney who can maximize your chance of success on appeal. As stated, no one factor is determinative; you want to consider all of them in making the crucial choice of an appellate attorney.

To schedule a consultation for an appeal, contact us online or call (310) 424-5816. We have offices in Los Angeles, CA, Austin, TX, and Manhattan, NY.

In 2003, 17-year-old Frances Choy was arrested in Brockton, Mass. for pouring gasoline around her home and setting a fire that killed her parents. After two trials where the jury failed to reach a verdict, in 2011 she was on murder and arson charges and sentenced to life in prison without parole. Kenneth Choy, Ms. Choy’s 16-year-old nephew, who also lived in the home, was tried on murder charges but was acquitted shortly after Ms. Choy’s first mistrial and quickly after fled to Hong Kong in 2008.

This September, Judge Linda E. Giles vacated the convictions following Ms. Choy’s lawyers’ discovery of multiple issues that occurred at her third trial, when she was indicted. In addition, Judge Giles also ruled that emails that recently emerged proved the trial prosecutors showed “racial animus” against Ms. Choy and members of her family. These emails include exchanges of images of Asian people, some with derogatory comments, ‘jokes’ about Asian stereotypes, and cartoons mocking Asian people speaking imperfect Asian. The prosecutors’ disturbing emails went even further and made jokes insinuating Ms. Choy committed incest with Kenneth Choy, who now, with new evidence, is thought to be the one who had actually set the fire and blamed Ms. Choy.

The numerous problems that occurred at Ms. Choy’s third trial are now revealed, which, in combination with the discriminatory emails, led to Judge Giles overturning the conviction. At her trial the prosecutors made Ms. Choy out to be an emotionless killer who wanted her parents’ life insurance and to spend more time with her boyfriend. Prosecutors presented Ms. Choy’s sweatpants that she was wearing after the fire as evidence from a State Police chemist, claiming the sweatpants tested positive for gasoline residue. Yet, following her conviction, Ms. Choy’s legal team hired an analytical chemist who concluded that no gasoline residue was on her sweatpants. Although Kenneth had already been suspected in setting the fire, after he testified against Ms. Choy, her attorney did not bother to call an expert witness or interview others about Kenneth’s role in the fire. The key witness, who Ms. Choy’s trial lawyer did not contact, was a friend of Kenneth’s, who later put in a sworn statement that Kenneth admitted he started the fire. The key witness said Kenneth did so out of revenge, and even bragged about being found not guilty. Prosecutors also withheld the knowledge of two other fires at the home while Ms. Choy was incarcerated.

The prosecutors involved were Karen O’Sullivan and John Bradley. O’Sullivan left the Plymouth County’s district attorney’s office years ago and now works in the Bristol County’s DA office, while Bradley was fired from the Plymouth office in 2012. While incarcerated, Ms. Choy pursued a bachelor’s degree from Boston University, and graduated magna cum laude. Her Attorney John Barter said, in a statement from People magazine, that “This may be the first case in the U.S. where a murder conviction has been thrown out because of racism on the part of prosecutors.” Her other Attorney Sharon Beckman agreed and shared, “Frances can never get back the 17 years the criminal legal system took from her, but we are overjoyed at her exoneration and hope her case will inspire meaningful reform,” according to the New York Times.

We too hope this case will lead to reform, in not just the realm of wrongful convictions, but the racism that exists that often leads to them. The racially degrading comments of the prosecutors in this case, and more subtly in many others, caused both the prosecutors and the jury to view Ms. Choy as a stereotype and disregards her humanity. Thanks to Ms. Choy’s persistence and the support and work of her attorneys, Ms. Choy was able to achieve justice that is long overdue. With her attorneys she was able to fight back against the system, and hopefully will inspire others to do the same. We are glad to see Ms. Choy win back her life, and hope to help others do the same.

America’s jury system is a wonderful thing. In the interest of a fair trial, a group of your fellow citizens gather to decide whether or not you are guilty as charged. Theoretically, it’s one of the best ways to reach a just verdict in a court of law.

Theoretically…

That’s not to say that humans never make mistakes, and juries are no exception. Human error naturally extends to juries, as hundreds of wrongfully convicted individuals can tell you.

But a jury conviction is not necessarily the end of your case. If you or a loved one have been wrongfully convicted because of jury error, let an experienced and accomplished appeal lawyer from Spolin Law P.C. review the trial record and explain your options.

With our history of getting wrongful convictions overturned, uncovering jury mistakes, and securing the release for countless individuals, we have the knowledge and fierce commitment to helping help your case.

Call (310) 424-5816 today or contact us online for a free consultation.

How Are Juries Selected?

Different states have different means of selecting their jurors for trials. In California and Texas, for example, jury members may come from records provided by the DMV, or voter registration lists. Other states, like New York, may select jurors from income tax, unemployment or family assistance, or volunteer records.

Once the jury members are summoned to court, they are placed on panels for select trial juries.

How Should a Jury Decide on a Verdict?

Upon hearing the final arguments and receiving instructions from the judge, the jury members leave the courtroom to deliberate. Many states, including California, have a lead juror, or presiding juror, that heads the discussions, collects the jurors’ votes, and delivers the final verdict. The bailiff guards the jury room so that no one enters during deliberation.

Oftentimes, the court will provide the jurors with all possible verdicts in written form, so that the presiding juror only has to choose the correct verdict form after deliberation has ended.

In some cases, like those in federal court, the jury’s decision must be unanimous, with the exception of some civil cases.

The jurors may also be sequestered or secluded from all contact with other people, newspapers, and news reports, if they cannot reach a unanimous verdict by the end of the day. However, the jury will usually be allowed to go home at night in most cases. The judge instructs jury members not to view or read reports of the case in the news, nor are they allowed to discuss the case outside of the jury room.

If the jurors cannot reach a unanimous verdict, it is referred to as a hung jury, which will lead to a mistrial. Since the case is not decided at this point, it may be tried again at a later date before an entirely new jury. Another option is for the prosecutor or plaintiff to drop the case, which removed the need for a retrial.

What Is Reversible Juror Error?

While everyone makes mistakes, what happens when the error is made during a jury trial with consequences as serious as a criminal conviction or incarceration.

If the jury’s error was so significant that it is considered a reversible error​, it could be grounds for appeal. The most common type of reversible jury error stems from poor jury instructions, but other possibilities include whether the evidence or testimonies were improperly introduced or there was insufficient evidence to support a conviction.

What’s the Next Step if You Suspect Juror Error?

It can be hard to identify when reversible juror error occurs, since deliberations happen behind closed doors and juries rely heavily on instructions for legal context. For instance, if the jury receives improper instructions, it’s highly unlikely they will reach a fair verdict.

If you or your trial attorney believe a reversible juror error occurred, it’s best to consult an experienced appeals attorney who can review the trial record, the judge’s instructions, and identify anything that may have resulted in an unfair result.

How Spolin Law, P.C. Can Assist You

At Spolin Law, P.C., we know how much damage a wrongful conviction from a jury’s error can inflict on someone’s life. But our understanding of how jury errors are made and what it takes to reverse these mistakes has exonerated many of our clients and helped them get their lives back.

Call us today at (310) 424-5816 or contact us online to learn more about how we can help you.

When a case goes to trial, the court has some leeway in how they decide certain issues. If they fail to decide the matter in a legally valid way, this could be an abuse of its discretion and you may be able to get the court’s decision overturned.

A criminal appeal in California is challenging, as courts are generally very careful about their protocols. But mistakes happen, resulting in inappropriate evidence being admitted, overly harsh sentences, and wrongful convictions.

If you believe that a legal mistake led to your or a loved one’s current situation, you need an experienced appeals attorney with a history of success in the criminal appeal process. Let Aaron Spolin and the attorneys at Spolin Law, P.C. review your case file, find any errors, and fight to have incorrect decisions reversed.

Start your appeal today. Call (310) 424-5816 for a free consultation with Spolin Law, P.C.

Appeals: Defining Discretion

Discretion is the flexibility given to the court or judge in your case to make decisions based on circumstances, legal precedent, and their own judgment. This is a fairly vague legal concept, but it usually covers very specific decisions made by judges in criminal cases.

When judges act outside the scope of their authority, base decisions on biased views, or misinterpret the law, it can be considered an abuse of discretion.

Some common examples of abuse of discretion are:

• Not allowing a certain witness to testify
• Showing bias toward the accused
• Making flawed rulings on evidence that stifle one side’s rights
• Influencing the jury to reach a certain verdict
• Sentences that are far too harsh for the offense

When Abuse of Discretion Occurs

How do you know when abuse of discretion occurred?

This is a hard question to answer definitively since discretion is based on individual judgment. And like most appeals, proving that a legal error happened can be an uphill battle. However, the court does not have to prove that they were correct or fair in their judgment. Instead, you only have to establish that they abused their discretion.

For an appeal court to rule that a lower court abused its discretion, and subsequently denied you a fair trial, you must show that the judge’s decision was so obviously against the evidence and reason that it violated your right to a fair trial.

An appeal based on abuse of discretion can have several possible outcomes. If successful, the appeal court may reverse the trial court’s judgment. If you prove that an abuse of discretion occurred but not that it kept you from receiving a fair trial, the appeal court may comment on the error but not overturn the decision. In addition, if you fail to prove an abuse happened, the appeal court will uphold the trial court’s original decision.

Abuse of Discretion: Standard of Review

Standard of review refers to the grounds on which you request a review of your trial court decision. It is not enough to say that you disagree with the decision and ask for an appeal, nor is it enough to state that the trial was unfair or erroneous.

The appellate court is very limited in what it can look at in an appeal, which is why you and your attorney must choose the correct standard.

Other standards of review include the substantial evidence and de novo standards. Substantial evidence is when the trial court’s decision is not backed up by sufficient evidence. The de novo standard is appropriate when the issue stems from a legal issue, allowing the appellate court to evaluate the case as if the trial court had never ruled on it.

Contact Spolin Law for Help

The court is often slow to overturn decisions, and you have a demanding burden to prove an abuse of discretion occurred. But if you think there’s a chance that such an abuse happened in your case or that of a loved one, you should contact Spolin Law P.C. and speak to an experienced criminal appeals lawyer or staff member as soon as possible.

Working with an attorney with a background and history of success in appeals can give you clarity into your case and confidence in your argument. This could result in receiving a lighter sentence, a new trial, or even your freedom.

To find out more about appealing your case, call (310) 424-5816 or reach out online to schedule a free case evaluation.

Coronavirus claims the life of exoneree, Richard Lapointe

In 1987, the mysterious death of 88-year-old Bernice Martin rattled the small city of Manchester, Connecticut. Martin was violently raped, stabbed, and strangled. Her apartment was then set to flames and the building burned to the ground with her inside.

Two years had passed, and the offender was still not identified. The Manchester police were frustrated with the little progress they had made and wanted nothing more than to solve the case. However, to do so, they needed someone to blame for the crimes and felt that Richard Lapointe fit their criteria.

Mr. Lapointe was a middle-aged, mentally disabled man, with a loose connection to the victim. The police called Lapointe in for questioning and after a grueling 9 ½ hour interrogation, Lapointe signed three written statements, falsely confessing to all crimes. He was convicted in 1992 and sentenced to life in prison.

However, many recognized the discrepancies in Lapointe’s case and rallied to his defense. Just months after Lapointe’s conviction, a group called Friends of Richard Lapointe was formed. His supporters believed he was unfairly targeted because of his disability and worked to advocate on his behalf. They eventually reached out to Centurion Ministries, an organization that fights wrongful convictions. A band of lawyers at Centurion felt for Lapointe and agreed to help challenge the court’s decision.

In court, his lawyers successfully proved that Lapointe was not given a fair trial nor an accurate verdict. They pointed out that the state suppressed important evidence that would likely have changed the outcome of the case. They also argued that Mr. Lapointe’s original trial counsel failed to provide proper assistance by neglecting to call important witnesses to testify and making no effort to dismiss Lapointe’s false confessions despite overwhelming evidence that showed inconsistency.

The legal team at Centurion Ministries stood by Lapointe for a total of 15 years, working tirelessly to prove his innocence. Finally, on October 2, 2015, his case was dismissed and after 26 years in prison, Lapointe was a free man once again.

Upon his release, Lapointe moved back in with his family until eventually being moved into a nursing home. It was during his time there that Lapointe contracted the novel coronavirus.

Sadly, after valiantly battling the virus for weeks, Richard Lapointe passed away on Tuesday, August 4, at the age of 74.

Sometimes the criminal justice system gets it wrong — more often than we would like to admit. But if Lapointe’s inspiring story has taught us anything, it’s that with the right attitude and a strong support system, we can stand up to the faulty system and fight for justice.

Our hearts go out to the friends and family of Richard. Although Mr. Lapointe is no longer with us, his unwavering resilience and courage will continue to be an inspiration for us all.

Are you interested in appealing your conviction? It’s best to talk with an experienced criminal appeals lawyer or staff member at Spolin Law P.C., right away. Our experienced attorneys will obtain and review your trial record, look for legal errors to support an appeal, and discuss your options.

During our review, we’ll apply various legal standards to the court record as we look for errors and opportunities to have your case reversed, reduces, or re-tried. One of the standards of review that might be relevant is the substantial evidence standard. It comes into play if there’s a question about whether the jury had enough evidence to convict you.

To learn more about appealing a criminal conviction or sentence, contact us online or call (310) 424-5816 to set up an initial consultation.

What Is the Substantial Evidence Standard?

The substantial evidence standard is one of the ways appellate courts review a case. Several standards of review exist at different levels. Courts use these standards to analyze certain legal issues consistently. Standards give judges guidelines for how to measure whether a legal error occurred.

When Do Courts Use the Substantial Evidence Standard?

An appeals court uses the substantial evidence standard when reviewing a factual decision made by a jury, like whether a defendant committed a crime. The appellate judges ask themselves whether there was enough evidence to support the jury’s finding. In other words, was there enough evidence for the jury to reach its conclusion, or did the jury’s verdict stretch beyond what the evidence supported?

What Does Substantial Evidence Mean?

Courts defined substantial evidence to mean there is more than a mere scintilla. Simply put, there is such relevant evidence that a reasonable mind would accept it as adequate to support a conclusion. When an appellate court is deciding whether there was substantial evidence, they consider the whole trial record, including all witness testimony.

The Substantial Evidence Standard Respects the Jury

Different standards of review require varying amounts of regard to the lower courts. For example, the substantial evidence standard typically shows deference to the jury’s decision.

An appellate court assumes a trial jury, which heard the testimony and saw the evidence firsthand, was in a better position to decide the verdict than it is. The judges will review the trial record with the verdict in the best possible light.

Appellate Judges Don’t Decide if the Jury Was Right

When appellate judges review a trial record for substantial evidence, they are looking at whether a reasonable judge or jury could have reached the relevant finding based on the facts present at trial. The judges aren’t deciding whether they would have come to the same conclusion. Another judge or jury might have reached a different, yet also reasonable conclusion.

What if the Substantial Evidence Standard Is Not Met?

If an appellate court finds there was no substantial evidence to reasonably support the jury’s decision, then this is a legal error it must correct. An appellate court will reverse a criminal conviction if, after reviewing all of the evidence in the most favorable light to the conviction, it still finds that a reasonable and rational fact-finder could not have found the necessary elements of the crime beyond a reasonable doubt.

Talk with a Criminal Appeals Lawyer Today

If you believe there was, on the whole, not enough evidence to show you committed a crime beyond a reasonable doubt, talk with a criminal appeals attorney or staff member at Spolin Law P.C. immediately. We tackle federal and state-level appeals regularly, and have a long history of reversals and sentence reductions. We will file a notice of appeal, obtain a trial transcript, submit an opening brief describing the legal or factual errors that took place, and prepare to fight for your freedom.

To schedule an initial consultation about an appeal, contact us online or call (310) 424-5816. We have offices in Los Angeles, CA, Austin, TX, and Manhattan, NY.

Can You Be Arrested While Protesting?

While your right to protest is protected under the first amendment, there are certain restrictions as to where and how you may do so. Failing to comply with these restrictions can result in an unwanted arrest.

There are many reasons you can be arrested while protesting. For instance, you may be arrested for protesting on private property or for disrupting car or pedestrian traffic with your assembly. Law enforcement officers may also break up any violent protests and can arrest protesters who are engaging in violence or property destruction. Violating an order to disperse or neglecting state/country curfews can also put you in handcuffs.

What happens after you have been arrested for protesting?

If you are arrested at a protest, you will be searched and transported to a local police station for processing. There you will be fingerprinted, photographed, and placed in a holding cell. At that point, you can either decide to post your bail or remain in custody until your court hearing, during which your bail amount may be adjusted.

Your first court appearance is known as an arraignment and is expected to occur within 48 hours of your arrest. During your arraignment, you are informed of the charges that have been filed against you and you are asked to enter a plea of guilty or not guilty. If you plead guilty, you will be sentenced right then, if you plead not guilty, you will go to trial. The court will then select a trial date and either set, modify, reinstate, or exonerate your bail.

If you chose to go to trial, you will have to return to court within a few weeks of your arraignment. You will plead your case to a judge and receive a final verdict.

What Are Some Common Punishments For Protesting?

Each case is different. While most offenders receive only minor penalties, certain crimes might warrant harsher and much larger punishments. Below is a list of common protest arrest charges and their respective penalties:

• Unlawful assembly: A majority of arrests made during protests are based on unlawful assembly. Unlawful assembly is a misdemeanor that carries a maximum 6-month jail sentence. Judges rarely assign 6-month sentences unless the circumstances require it.
• Trespassing: Protesters may also be arrested for protesting on private property. In California, trespassing can either be charged as an infraction, a misdemeanor, or a felony. Trespassing infractions carry only a small fine, while trespassing misdemeanors are punishable by up to 6 months in jail and a maximum $1000 fine. Trespassing felonies however call for a maximum 3-year jail sentence and a $2000 fine.
• Obstruction of pedestrian or vehicular traffic: If you are found guilty of blocking car or foot traffic with your protest, you may receive a fine of up to four $400 or maybe sentenced to up to 4 months in county jail.

If you were arrested while protesting and were unfairly convicted on any of these charges, you can always push to appeal the court’s decision. If you chose to do so, it is important that you chose a team of experienced and successful appeal lawyers to represent you. Call Spolin Law P.C. today at (310) 424-5816, or reach out online to schedule a free case evaluation.

California Governor Gavin Newsom has announced the commutation (reduction) of sentence for a Spolin Law client who was previously serving a life sentence without the possibility of parole. The decision was announced on June 26, 2020. A copy of the commutation, signed by Governor Newsom as well as Secretary of State Alex Padilla, was released to state and national media outlets shortly after the commutation.

The Spolin Law client’s commutation was signed by Governor Gavin Newsom and Secretary of State Alex Padilla

A commutation of sentence is a method that state governors can use to cut short a person’s sentence. It is often used when someone has received an overly harsh sentence or has shown rehabilitation during his or her time in prison. A governor’s commutation is similar to the more well-known governor’s pardon. While a pardon erases a criminal conviction completely, a commutation simply cuts short the person’s sentence. State governors can commute or pardon for state crimes; the President can commute or pardon for federal crimes.

Governor Newsom explained his decision to commute the client’s sentence by describing the client’s excellent behavior, educational program participation, various certificates, and other noteworthy aspects of the client’s life.

In his commutation announcement, Governor Newsom said the following:

In 1998, James Heard, shot his romantic rival, Christopher Chessmar. Mr. Heard then directed his crime partner to shoot Mr. Chessmar. His crime partner complied, killing Mr. Chessmar. On March 20, 2000, the Superior Court of California, County of Los Angeles, sentenced Mr. Heard to life without the possibility of parole for murder.

Mr. Heard was 22 years old at the time of the crime and is now 44. He has been incarcerated for more than 21 years. He has expressed sincere remorse for killing Mr. Chessmar.

While serving a sentence with no hope of release, Mr. Heard devoted himself to self-improvement. Mr. Heard has maintained an exemplary disciplinary record while in prison. He has completed self-help programming and earned an associate degree and art certificates.

Prison staff, including work supervisors and correctional staff, have commended Mr. Heard for his generosity and artistic talents, as well as his interpersonal and leadership skills. Mr. Heard has lived in an honor dorm since 2004. He has donated his artwork to various charitable causes. Mr. Heard has also volunteered his time to crochet hats and scarves for charity.

Mr. Heard committed a serious crime that took the life of Mr. Chessmar. Since then, Mr. Heard has dedicated himself to his rehabilitation and becoming a productive citizen. I have carefully considered and weighed the evidence of his positive conduct in prison, the fact that he was a youthful offender, his long­term confinement, and his good prospects for successful community reentry. I have concluded that Mr. Heard merits the opportunity to make his case to the Board of Parole Hearings so it can determine whether he is suitable for parole.

This act of clemency for Mr. Heard does not minimize or forgive his conduct or the harm it caused. It does recognize the work he has done since to transform himself.

The client’s family was extremely happy to hear this good news.

To learn more about commutations and other types of post-conviction relief, call one of the Spolin Law attorneys or staff members at (866) 716-2805. Please also note that Spolin Law was not the law firm involved in the Application for Commutation of Sentence for this client. This post is intended to celebrate the client’s win, which he achieved without our assistance on this matter.

Pressured by the public protests demanding justice for George Floyd, New York legislators have just passed a bill that will ban the use of chokeholds by law enforcement. Although only recently adopted, this revolutionary bill originated in 2014 just after 43-year-old Eric Garner was strangled to death by four New York police officers.

In a peaceful arrest that quickly turned violent, Staten Island local, Eric Garner, was killed by NYPD officers on July 17, 2014. Being suspected of selling loose, untaxed cigarettes, Garner was approached by four police officers who proceeded to forcefully push him to the ground and hold him in a chokehold for around 15 seconds. In a disturbing video that recorded the incident, Garner was seen flailing his arms and gasping for air as he urgently repeats the phrase, “I can’t breathe,” a total of 11 times. Just moments later, Garner lost consciousness and died.

The NYPD Officer Daniel Pantaleo, who was responsible for Garner’s death, was fired from his job, but was never criminally prosecuted for his crimes.

In 2015, a year after Garner’s murder, New York Assemblyman Walter Mosley proposed a bill to New York Legislators in hopes of banning the use of the chokehold by New York Police officers. However, with little support behind it, the bill was abandoned and never signed into law.

Nevertheless, overwhelming pressure from the public over George Floyd’s death in Minneapolis pushed New York Legislators to revive the bill. Sponsored once again by Assemblyman Mosley, the bill, later named the Eric Garner Anti-Chokehold Act in honor of Garner, was finally put to a vote in June of 2020, almost 5 years after its original proposal.

On Monday, June 8, the bill was passed by both the New York Assembly and Senate by a vote of 140-three. Just four days later on Friday, June 11th, New York State Governor Andrew M. Cuomo signed the Eric Garner Anti-Chokehold Act into law.

The Eric Garner Anti-Chokehold Act states that the use of a chokehold or any other similar restraint that restricts breathing is considered a class C felony and is punishable by up to 15 years in prison.

Chokeholds have been prohibited in New York since 1993, however according to Assembly Speaker Carl Heastie, “The NYPD ban on chokeholds was not enough to protect Eric Garner, and it is not enough today. This legislation will put an end to the practice across the state.” With these new, stricter laws that now make the use of a chokehold a state crime, Heastie and other assembly members hope to prevent such horrible incidents from ever happening again.

The Eric Garner Anti-Chokehold Act was not the only bill signed into law by Governor Cuomo on Friday. In addition to banning the chokehold, New York legislators passed bills that require police disciplinary records be made public, prohibit race-based 911 calls, and force state police officers to wear body cameras.

These are just a few of the bills included in a new police reform bill package proposed by New York Legislators following the nationwide George Floyd protests. Cuomo has signed only four of the proposed 10 bills. The remaining six bills still await his signature.

At the bills’ public signing, Governor Cuomo made a statement explaining his motivation behind approving them saying, “Police reform is long overdue.” The governor said that these bills aren’t just about George Floyd’s murder, but about the “long list” of African American citizens who too have fallen victim to police brutality. Cuomo thinks that the implementation of these new bills will bring the state of New York one step closer towards ending the “injustices against minorities in America by the criminal justice system.”

This sweeping reform in New York has inspired other states to establish similar policies. In states like California, Chicago, Denver, Florida, Minneapolis and Phoenix, county police departments have announced that they will suspend the use of the chokehold, and the just as dangerous carotid restraint. Across the globe in France, the French government announced that it too is banning law enforcement officials from using chokeholds.

The passing of the Eric Garner Anti-Chokehold Act will bring necessary change that New York politicians and citizens have been waiting for. Assembly member and sponsor of the bill, Walter Mosley expressed his enthusiasm in front of the New York State Assembly saying, “In 2015 I introduced this bill to outlaw chokeholds statewide, and I am proud to see it taken up today as we pass legislation to reform our criminal justice system.”

Although Mosley is glad to have achieved such a feat, he thinks there is much more to be done in order to finally put an end to police brutality. He said, “This is an important step forward, but it will not be the last. We must work to change the way that police officers interact with communities of color, or we will continue to see these killings occur.”

If you are in need of legal help in New York, please contact Spolin Law, P.C.

— But Skips Its Chance to Modify Prejudice Prong of Strickland

In a 5-3 per curiam decision, the United States Supreme Court stopped short of doing what the habeas corpus petitioner asked it to do: modify or overrule the prejudice prong of Strickland v. Washington (1984), 466 U.S. 668, in the review of a claim of ineffective assistance of trial counsel. However, a majority of the Court in Andrus v. Texas (2020), 590 U.S. ___, found that the Texas Court of Criminal Appeals’ one-sentence dismissal of Andrus’s claim “without elaboration” was insufficient to support a determination that no prejudice occurred. It remanded the case for reconsideration of that issue.

Andrus was convicted of the murders of two people during a bungled carjacking. Trial counsel put on no defense during the guilt phase of the trial, opting instead to focus on the penalty phase. However, trial counsel failed to investigate the existence of mitigating evidence. He failed to present readily available evidence that Andrus’s mother was a drug addict, drug dealer, and prostitute who sold and used drugs around her children. She would disappear for days, sometimes weeks, at a time, on her drug binges. Andrus was often left with the responsibility to raise his siblings. His mother brought home abusive boyfriends who were in and out of Andrus’s life. At age 10 or 11, he was diagnosed with affective psychosis.

At age 16, Andrus confined in a Texas juvenile detention center for serving as lookout while his friends robbed a woman of her purse. He was put on high doses of psychotropic drugs and served long stints of solitary confinement. On multiple occasions, he self-harmed and threatened suicide. He was transferred to an adult facility and released at age 18. Not long after, he committed the murders of which he was convicted. In prison, Andrus attempted suicide.

None of the foregoing evidence was presented during the penalty phase of Andrus’s trial. In fact, trial counsel was unaware of the evidence because he did not investigate Andrus’s past and failed to interview witnesses who could have testified to those facts. The only witnesses that trial counsel did present actually bolstered the prosecution’s case that Andrus had a propensity for violence and was a threat to those around him. Andrus was sentenced to death.

After an unsuccessful direct appeal, Andrus filed a petition for habeas corpus in the trial court, claiming ineffective assistance of trial counsel in violation of his Sixth Amendment right. After an eight-day hearing, at which the above evidence of Andrus’s past was introduced, the trial court concluded that trial counsel had been ineffective and that such ineffective representation prejudiced Andrus.

The Texas Court of Criminal Appeals reversed. The court concluded that Andrus had failed to show, as he was required to do under Strickland, that counsel’s representation “fell below an objective standard of reasonableness” or that there was a “reasonable probability that the result [of the penalty phase of the trial] would have been different” had counsel’s performance not been deficient. Andrus petitioned the Supreme Court for a writ of certiorari.

In the Supreme Court, Andrus argued that the abbreviated analysis of Strickland by Texas courts in general and by the court in his case in particular resulted in the pro forma rejection of meritorious ineffective-assistance-of-counsel cases. He claimed that in cases such as his, where counsel’s trial performance was patently deficient, the “truncated, analytically unsound” application of the second prong of Strickland produces unjust results. The prejudice prong is so onerous, he claimed, that few courts find it satisfied, and he questioned how a criminal defendant could fail to obtain habeas relief when the adversarial system had so utterly failed.

Claiming that an abbreviated Strickland analysis that looks only at the evidence adduced at trial to determine prejudice is unjust and unconstitutional, Andrus argued that a court must compare the evidence from the trial with the evidence from the habeas corpus hearing to determine whether the defendant was prejudiced. The question is whether the new evidence adduced at the habeas corpus hearing would have affected the outcome of the trial, not whether the evidence at trial was sufficient to support the penalty imposed. Further, Andrus claimed that a reviewing court in a habeas corpus ineffective assistance claim must assess how the deficit performance affected the fundamental fairness of the proceeding.

The Supreme Court did not bite on the opportunity to modify or overrule Strickland. Without addressing Andrus’s arguments on that score, the Court applied the Strickland test to his claim. It did, however, reject the Texas Court of Criminal Appeals’ decision dismissing the habeas corpus petition. Disagreeing with the Texas court, the Supreme Court held that the record clearly showed that the counsel’s conduct fell below reasonably objective standards for representation.

Next, the Court stated that the Texas court “may have failed properly to engage with” the question of prejudice from that ineffective representation. The lower court “concluded without elaboration” that Andrus failed to meet the Strickland standard, but it should have considered “the totality of the mitigation evidence” — both that adduced at trial and that presented in the habeas hearing in the trial court. That evidence, the Supreme Court held, must be reweighed against the evidence in aggravation to determine whether a reasonable probability exists that Andrus would have received a different sentence. The Texas Court of Criminal Appeals’ opinion was “unclear” as to whether it engaged in this analysis, and the Supreme Court remanded the case for further consideration of the prejudice issue.

While the Supreme Court did not modify or overrule the prejudice prong of Strickland, it did provide guidance on the evidence that must be considered in determining whether prejudice exists. Its rejection of the Texas court’s one-sentence dismissal of Andrus’s claim may signal that more is required of a court reviewing an ineffective-assistance-of-counsel claim. The decision must show that the court “reweighed” all of the newly provided mitigating evidence against the aggravating evidence in determining prejudice. In addition to breathing life back into Andrus’s habeas corpus claim, the Supreme Court’s holding may shift the prejudice analysis away from a curt dismissal and toward a meaningful weighing of the evidence.