What Is a Petition for Rehearing?Published on April 29, 2020
After a case is appealed and the decision does not go in your favor, you may feel like you are out of options. However, there is a possible route that your attorney may explore: a petition for rehearing. This petition has strict time limits and requirements, so it is important to discuss it with your attorney as soon as your appeal decision comes through.
Understanding a Petition for Rehearing
After you file an appeal and your case goes to the appellate court, they pass down their decision. The petition for rehearing is a way to contest the appellate court’s decision.
This isn’t the time to try out a new defense angle or fight to have evidence analyzed in a different way. It is primarily used to resolve errors made by the appellate court during the appeal trial. It takes a careful and exhaustive legal review of the court’s decision to find useful flaws.
When is a Petition for Rehearing Appropriate?
When you discuss the outcome of your appeal with your appeals attorney, they will help you understand your options. If they recommend a petition for rehearing, it means that your case falls into one of a few categories.
Situations in which a petition for rehearing may be appropriate include:
- If the court’s decision focused on an issue that was not included in your attorney’s briefs
- If the court’s opinion ignores or omits an important fact or issue raised during the case
- When a fact is misstated or misrepresented and influences the appellate court’s decision
- A legal error is made
- If there are concerns over due process
The Deadline for a Petition for Rehearing
A petition for rehearing in California must be filed within 15 days of the appellate court’s decision. This is a very tight deadline, which is why your attorney will explore and explain your options as soon as the original decision is handed down.
What Happens Next
Several things could happen after your attorney files a petition for rehearing. The court might deny the petition immediately with a written order. This is fairly common, as it is relatively uncommon for the court to realize they’ve made a mistake and reverse it.
If they deny your petition, they may still modify the original opinion to reflect the information presented.
The court may also agree that an error was made in their decision. They may issue a new decision reflecting the new information. They may also request additional briefs or oral arguments from your attorney for additional clarification. After receiving this information, they will pass down their new decision.
If the court does not respond to the petition before the original decision becomes final, the petition is considered to have been automatically denied.
Other Options After an Appeal
Your attorney may also recommend filing a review. This strategy is often used if your case poses a new legal question or issue. It is also helpful if there are constitutional violations in the original decision or handling of the case.
Once your options have been exhausted in the appellate process, you may be able to pursue a Supreme Court review.
Find Out How We Can Help With Your Appeal
Appealing a court decision can be complicated and time-consuming, which is why it is crucial to work with an attorney who focuses on criminal appeals in their practice.
At Spolin Law P.C., we fight appeals in state and federal courts. Get started now by calling us at (310) 424-5816 or reach out online. We will schedule a free consultation and explore your legal options.
Release of Famous Inmate, Tekashi69, Due to Coronavirus Leads to Questioning About ProtocolPublished on April 20, 2020
A famous rapper, Tekashi69, was released four months before his original release date, sentenced to spend the final months in home confinement. Tekashi69, formally known as Daniel Hernandez, 23, was originally sentenced to two years in prison after pleading guilty to various gang robberies and shootings. Due to the fact that the artist has asthma, he is at greater risk to adverse effects were he to contact Coronavirus, justifying his shortened sentence.
According to the New York Times, the judge, U.S. District Judge Paul A. Engelmayer, argued that “the pandemic presented ‘extraordinary and compelling reasons’ for a compassionate release of Mr. Hernandez, who, he wrote in his order on Thursday, ‘no longer will present a meaningful danger to the community if at liberty.’” Currently, people are wondering if he was released early because of his celebrity status or because he is immunocompromised.
Hernandez’s release comes at a controversial time, as criminal justice advocates and health officials alike are supporting the release of inmates to increase social distancing and decrease the spread of COVID-19. The New York Times describes this phenomena with; “thousands of inmates and officers in municipal, state and federal facilities have already tested positive, and at least five inmates at federal facilities have died because of the coronavirus outbreak since March 28, according to the Bureau of Prisons.”
However, this decision to release Tekashi69 has led to backlash and questioning from other inmates, especially fellow high-profile inmates. Both R. Kelly and Bill Cosby have argued for at-home confinement to finish out their terms, without success. What is unique about rapper Tekashi69’s case is that he has had underlying health issues since the beginning, combined with his cooperation with authorities and the short remainder of his sentence. Some argue that if R. Kelly or Bill Cosby were released too, people might assume they are getting special treatment because of their fame. Therefore, judges are trying to exercise caution when it comes to early inmate releases, making sure they have a strong justification for each case.
Some states have decided to take broader strokes to address the risk of Coronavirus spreading in prisons by releasing a large number of inmates at once. An order was signed last week by the Chief Justice of New Jersey, Stuart Rabner, to release 1,000 inmates from county jails who committed low-level offences.
At the same time, some federal decisions have been made to prevent the further spread of Coronavirus. Mr. Barr, the Attorney General, has put an order in place to prioritize the release of inmates at three prisons, in Louisiana, Connecticut, and Ohio, which have reported high numbers of Corona cases. Last week, Mr. Barr
“Asked the bureau to identify and release all inmates who were eligible for home confinement, no longer posed a threat to the public and were particularly vulnerable to the Coronavirus. After that directive, 522 of the system’s 146,000 total inmates were moved to home confinement, according to the Bureau of Prisons,” (New York Times).
Judges are asked to draw the line between who can be released early and who must stay in prison, in a fair yet timely manner. A prison in Chicago that currently obtains the most concentrated coronavirus cases in the United States, demonstrates the necessity to make these drastic changes. It is vitally important that judges take precautionary measures to prevent further spread of the disease, while also making equitable choices about who can be released and who must remain in prison to carry out their full sentences.
Malcolm Alexander: Wrongful Conviction Vacated After 38 YearsPublished on April 13, 2020
Unfortunately, wrongful convictions occur in the United States quite often, and the process of vacating these false convictions can take many years. This was the case for Malcolm Alexander, who fell victim to an incorrect eyewitness identification, an incompetent defense attorney, and lost evidence.
In 1980 Malcolm Alexander was arrested and convicted for a rape he did not commit. The rape, which took place in 1979, was linked to Malcolm Alexander solely by eyewitness identification. The victim initially described the attacker as a 6ft tall male, but eventually, though somewhat uncertain, identified Alexander. The victim was attacked from behind and did not identify Malcolm Alexander until four months after the rape had occurred. Even then, the police incorrectly conducted the perpetrator line-ups and only regarded her identification as “tentative.”
This incorrect eyewitness fits a pattern in wrongful conviction cases. Eyewitness identification is the number one reason for wrongful convictions. Specifically, 71% of wrongful conviction cases are due to an incorrect eyewitness identification. In fact, in the legal profession, there is growing evidence against the accuracy of eyewitness identification; one in four is incorrect. (See criminal appeals attorney Aaron Spolin’s book, Witness Misidentification in Criminal Trials, to read about this topic in greater depth).
While most humans believe they can recognize those that have caused them or others harm, the misidentification stems from a variety of factors. Some of the most crucial factors are: witnesses being under high levels of stress, witnesses tending to concentrate more on weapons than the identity of the perpetrator, police or prosecutors using suggestive tactics to sway witnesses while they are in the identification process, and more.
In the case of Malcolm Alexander, the witness was both in an extremely high stress situation as she underwent a rape, and did not have a good line of sight to the attacker — both of which could have led to the misidentification. In spite of the victims uncertain identification, the trial for Malcolm Alexander was quick. The lawyer defending Mr. Alexander did not point out any of the inconsistencies with the witness identification, nor promote another narrative of his innocence. In fact, the lawyer defending Malcolm Alexander did not present neither opening nor closing arguments on behalf of his client, nor did he call any witnesses to defend Mr. Alexander. The entire trial of Mr. Alexander lasted one day. In spite of the existence of DNA evidence, including pubic hairs and semen, neither attorney requested that DNA testing be completed. Malcolm Alexander was 21 years old, and the father of a two year old, who was then given life without parole.
Malcolm Alexander advocated for his innocence while he was in prison, and eventually, the Innocence Project picked up the case. Unfortunately, the innocence project faced many challenges. Most notably, the evidence from the case had been destroyed by the New Orleans Police Department. However, after a continuous push from the Innocence Project, the pubic hairs from the scene were recovered.
After 38 years in prison in Louisiana, Malcolm Alexander was exonerated, thanks to the evidence found by the attorneys working on his case. A sample of his pubic hair did not match the pubic hair left by the perpetrator at the crime scene. Malcolm Alexander was released from prison on January 30th, 2018.
“ MALCOLM ALEXANDER.” Malcolm Alexander – National Registry of Exonerations, University of Michigan Law, 6 Feb. 2018, www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5274.
“Eyewitness Identification Reform.” Innocence Project, www.innocenceproject.org/eyewitness-identification-reform/.
“Malcolm Alexander.” Innocence Project New Orleans (IPNO), 30 Jan. 2018, ip-no.org/what-we-do/free-innocent-prisoners/client-profiles/malcolm-alexander/.
Fights to end the School-to-Prison pipelinePublished on April 7, 2020
The term ‘School to Prison Pipeline,’ also known as ‘Cradle to Prison Pipeline’ describes the disproportionate impact of historical education policies, such as zero tolerance, on people of color and vulnerable populations. The effect of this is more students being sent to juvenile detention centers with an inevitable increase in racial inequality. Typically, lower income schools use stricter behavior management systems that implement immediate punishment, instead of using positive reinforcement and other positive behavioral strategies. In lieu of this, some steps have been made in the right direction by politicians, such as Bernie Sanders and Ayanna Pressley, who are joining the fight to end School-to-Prison pipelines. Addressing and amending this issue will set in motion a long overdue fight to reach equality in the United States.
According to an article written on neaToday, “In 2010, more than 3 million students were suspended from school, aka double the level of suspensions in the 1970s. Meanwhile, more than a quarter-million were “referred” to police officers for misdemeanor tickets, very often for offenses that once would have elicited a stern talking-to.” NEA shares another reason that students are more likely to go to Juvenile Detention Centers if they live in low-income areas is because there are less school resources and more budget cuts. This results in less educational staff monitoring at any given moment, and instead filling those gaps with school police officers. In-school officers are constantly monitoring the ongoings of students in a more strict manner, which leads to an increase of student punishments.
Specifically, Black students represent 15% of public school students, yet they represent 31% of all students referred to law enforcement, and other students of color are also disproportionately arrested in schools (specifically Native American, and LatinX). When these students are kicked out of school they are left with nowhere to go and no community to hold on to. Often, many students get involved in illegal activity and drugs and alcohol due to their lack of direction and school time.
This trend is reflected across multiple underrepresented groups. People with disabilities face harsher punishments than their able-bodied counterparts, especially in affluent schools, according to Huffington Post. “In affluent schools, students with disabilities are overrepresented among students who receive suspensions by 20 points, while in low-income schools, they are overrepresented by nearly 11 points.” This can cause issues because studies show that students who are suspended at least once during their secondary education are more likely to drop out of school, and more likely to enter the criminal justice system. However, some critics argue that less suspensions means more dangerous and disruptive students in the classroom, which can pose a threat to other students and staff members.
As the presidential election of 2020 has begun to ramp up, various left-leaning candidates have spoken up about the need to change the school to prison pipeline trajectory. According to a Buzzfeed article, both Elizabeth Warren and Bernie Sanders have learned about the injustices in the school systems, primarily for students of colors, and have agreed to provide more resources to low-income schools, if elected.
Another politician, Ayanna Pressley, a United States Representative for Massachusetts’ 7th district (including the city of Boston), and the first black woman elected to congress from Massachusetts, has spoken up about ending the School-to-Prison Pipeline in the HuffPost. Pressley has specifically focused her activism on young black girls. HuffPost shares that black girls are “five times more likely to be suspended than white girls, according to a 2017 report from the National Women’s Law Center, which used data from the U.S. Department of Education’s Office for Civil Rights from 2013-2014.”
In December 2019, Pressley announced criminal justice proposals, which included the Ending PUSHOUT Act, aiming to stop discriminatory punishment in schools, specifically for black and brown students. The Ending PUSHOUT Act, which stands for Punitive, Unfair, School-Based Harm, that is Overt and Unresponsive to Trauma, would bring in money to provide teachers with implicit bias training, hire more school counselors and social workers, and change school discipline regulations based on community input. In order to be eligible for the program, schools have to decrease suspensions and expulsions, and ban corporal punishment for all students. Pressley is one of the first politicians, after President Obama, to take concrete steps towards fighting the School to Prison Pipeline that currently exists in our society and causes extreme disadvantage to students of color.
As Pressley articulately stated, “we must work in partnership with communities to develop holistic solutions that center the lived experiences of girls of color who have been most impacted by cruel and discriminatory school policies and practices.” Especially as President Trump decreases regulations already in place to help the most at-risk populations, we must fight to end the School-to-Prison Pipeline and provide all students with equitable opportunities. This is one necessary action to reach the goal of facing inequality in the United States and prevent unnecessary crowding in juvenile detention centers with innocent youth.
Early Release of Prisoners Due to CoronavirusPublished on April 2, 2020
Coronavirus is spreading like wildfire, affecting every single industry and institution- including the criminal justice system. Due to overcrowding in prisons and jails, social distancing is nearly impossible. Many local governments are taking matters into their own hands. In hopes of decreasing the number of people who have contracted or could contract COVID-19, they are canceling all visitation rights and/or allowing for an early release of inmates who have committed low-level crimes.
According to the Boston Globe, prison populations are at a higher risk of contracting serious health issues compared to the general population. “Many [inmates] are elderly, and have diabetes, cardiovascular disease, asthma, and cancer, conditions that, if they become infected with COVID-19, make them more likely to require intensive care and especially vulnerable to dying of the disease.” Specifically, about 40% of incarcerated people are already suffering from chronic health conditions, and therefore at higher risk of adverse outcomes if infected. If prisoners were to contract COVID-19 at the anticipated population rates, it would exacerbate the already overwhelmed health care staff and facilities.
As seen in South Korea at the Daenam Prison Hospital, Coronavirus will spread rapidly if appropriate measures are not taken. In Daenam prison, 101 inmates contracted coronavirus, resulting in 7 deaths, according to the New York Times. All but three people living in the prison at the time contracted Coronavirus. This is a prime example justifying the extreme measures being taken by governments regarding the criminal justice system.
In the United States, one specific county jail in Los Angeles, Alameda County, is taking precautionary measures to prevent the spread of the virus. In early March, the county Sheriff’s Office announced their plan to modify sentences, and subsequently release about 250 inmates. Additionally, Sheriff Alex Villanueva from Los Angeles has directed police officers and deputies alike to cite and release people instead of arresting them. As a result, throughout the county of Los Angeles, arrests have dropped from 300 to 60 daily, and jail populations have decreased by over 600 inmates.
Simultaneously, various civil rights advocacy groups are fighting to get more prisoners released. According to the Los Angeles Times, some advocates called the Los Angeles Sheriff’s Department asking to release inmates with 30 days or left on their sentences and to specifically take precautionary measures for vulnerable inmates- elderly or those with previous health conditions. For example, Senator Kamala Harris is strongly advocating for the release of low-risk inmates on Twitter. “She is pushing the Bureau of Prisons to release ‘all low-risk inmates, including those who are in pretrial detention because they can’t afford to make bail.’ She noted that people ‘in detention are especially vulnerable to the spread of coronavirus,’” according to NPR.
For all these reasons, the government is noticing it is vitally important that the criminal justice system take action immediately to reduce the number of people in confinement. One way this is being done is by reclassifying misdemeanors, such as low-level offenses that do not harm public safety, into non-jailable offenses. Additionally, people who have not yet been convicted, such as those in pretrial detention, can be released to prevent unnecessary prison crowding. While these controversial measures may seem extreme, they are essential in preventing the rapid spread of COVID-19.