Legal Blog

California Proposition 47 is the Reduced Penalties for Some Crimes Initiative. In 2014, California voters approved lowering the charge and penalties for certain offenses and allowing individuals convicted of these crimes to petition the court to reclassify their convictions and resentence them.

If you are currently imprisoned for a Prop 47 offense that was originally a felony, it is best to talk with a lawyer about resentencing. Your original sentence for a felony could be significantly reduced. You may have also completed your sentence for an eligible offense, in which case an attorney can help with reclassification.

Spolin Law Firm P.C., assists individuals with resentencing and reclassification. Aaron Spolin is an award-winning California appeals attorney and former prosecutor. He will carefully review your case to determine if you are eligible and guide you through the court process. Reach out online or call (310) 424-5816 to set up a free consultation.

Prop 47 Reduced Several Felonies

Prop 47 lowered specific non-violent property and drug crimes from felonies to misdemeanors, unless they had a prior violent or sex crime conviction. This helps individuals in two ways.

Misdemeanors carry lighter sentences than felonies and, in many situations, fewer collateral consequences. A felony record can be extremely damaging to someone’s future.

Prop 47 Eligible Offenses

The offenses included in Prop 47 are:

• Shoplifting: Less than $950 worth of merchandise
• Petty theft: Property worth less than $950
• Receiving stolen property: Less than $950’s worth
• Forgery: Value of forged instrument must be less than $950
• Fraud: Less than $950’s worth
• Writing a bad check/insufficient funds: Less than $950’s worth
• Simple drug possession: Personal use of controlled substances

Some of these were felonies or wobblers, which means the prosecution has discretion in charging it as a misdemeanor or felony. Now, they are misdemeanors every time.

If you were convicted before November 2014, talk with us about resentencing or reclassification.

Resentencing – Are You or a Loved One Serving Time?

People currently serving time in California prisons, on probation, or parole for a Prop 47 offense can ask the court to reduce their sentence to what it would be as a misdemeanor. You must file a petition with the court that entered the original judgment against you.

If you are eligible, the judge recalls your previous sentence and resentences you under the new misdemeanor offenses. However, the court can refuse to resentence you if it finds you pose an unreasonable risk of danger to public safety.

If you are resentenced, you will be given credit for time served. You are also subject to up to one year of parole. Therefore, you could be out of prison much sooner, even right away, if you served over a year.

If you are granted parole or probation, make sure to follow all the conditions. A probation or parole violation could send you back to court and then prison.

Reclassification – Did You Complete Your Sentence?

Have you completed your sentence for a past Prop 47 offense? If so, talk with a lawyer about getting your conviction reclassified as a misdemeanor.

The first step is making sure you are eligible. Your conviction has to be for one of the offenses listed above. You also cannot have certain other crimes on your record, such as rape, child molestation, murder, or identity theft. You are not eligible if you are a registered sex offender. Here is a full list of disqualifying convictions.

If attorney Aaron Spolin finds you are eligible, he will guide you through the paperwork and filing your petition in the court that handed down the original felony judgment. You also have to serve the district attorney’s office with the forms to show you are asking for a reclassification. If you are eligible, then the court must change the felony to a misdemeanor.

Deadline for Filing

The deadline for filing a resentencing and reclassification petition is Nov. 4, 2022, or a later date if you can show reasonable cause. Though you have about two years left to take advantage of these changes, there is no need to wait. Find out if you are eligible as soon as possible.

Let an Experienced Appeals Lawyer Help You

Resentencing and reclassification under Prop 47 are similar, but not the same thing. It is essential to have an attorney represent you throughout either process.

At Spolin Law Firm, P.C., we will thoroughly review your circumstances, and if you are eligible, we will guide you through the process. Call us right away at (310) 424-5816 or use our online form to set up a consultation.

The new Los Angeles District Attorney, George Gascon, has promised to re-open thousands of old cases for California prison inmates with Los Angeles County convictions.

George Gascon defeated the prior District Attorney (Jackey Lacey) in the November election last month. He was sworn into office this past Monday, December 7, 2020. Mr. Gascon then shocked the legal community by announcing a wide array of sweeping reforms and a retroactive application of most of these reforms.

“Retroactive” means that the many of the new changes will affect convictions in the past, whether they are from 25 years ago or from the day before Mr. Gascon took office.

This article was written by one of the criminal appeals lawyers at Spolin Law P.C. To find out more about how George Gascon’s election can affect your case, call our firm at (310) 424-5816.

Types of Cases Affected

The new policies issued by the Gascon administration are listed in a series of special directives that were published on December 7, 2020. They affect the following cases:

Cases with Sentence Enhancements

Special Directive 20-08 commands all prosecutors to abolish sentence enhancements (including gang enhancements, strikes, three-strike penalties).

Juveniles Tried in Adult Court

Special Directive 20-09 orders the abolition of the use of adult court for juveniles. Special Directive 20-14 also orders the re-opening and re-sentencing of “all cases where the defendant was a minor at the time of the offense.”

Writs of Habeas Corpus

Special Directive 20-10 stops the prior practice of automatically opposing all writs of habeas corpus. Now, the DA Habeas Unit “shall not simply oppose the petitioner’s claim” when the inmate’s claims are “supported by reasonably available evidence.”

Innocent Inmates

Special Directive 20-13 completely changes the practices of the Conviction Integrity Unit so that the DA’s Office is tasked with helping prove the innocence of inmates where there are “avenues of investigation that have the potential to substantiate the applicant’s claim(s).”

Inmates with Overly-Long Sentences

As Mr. Gascon said himself: “the sentences we impose in this country, in this state, and in Los Angeles County are far too long … [and I] campaigned on stopping the practice of imposing excessive sentences.” (Special Directive 20-14, 12/7/2020, page 2, italics added). Special Directive 20-14 orders the DA’s Office to allow a review of old sentences and use all available legal methods to fairly resentence inmates who received overly-long sentences.

How an Inmate Can Benefit

The election of George Gascon is great news for California inmates with Los Angeles County cases. However, not every inmate will benefit from the new DA’s changes. Here are some steps that may help you in winning a reduced sentence for yourself or a loved one.

Find a Skilled Appeals Lawyer

While Mr. Gascon is clearly an ally in reducing inmate sentences, he is limited by the laws that currently exist. Spolin Law P.C. handles post-conviction matters for clients throughout California and has experience reaching out to the DA’s Office through some of the legal methods described below.

Learn About New Laws AB 2942 / PC 1170d1

One way to get Mr. Gascon’s DA Office to reconsider a case is to apply under the new law AB 2942, which went into effect in 2019. AB 2942 allows each District Attorney’s Office in California to recommend resentencing for old convictions that occurred in that county. The law, written into the Penal Code, is one way to seek the new DA’s help in reducing an overly long sentence.

Take Action

As one local attorney recently said, “It’s like the DA’s Office is now being run by a true-believer defense attorney.” Nonetheless, there are tens of thousands of unfair sentences that have been handed down in Los Angeles County over the last several decades. In order to benefit from these new policy changes, you will have to take some type of action so that your case gets noticed. The squeaky wheel gets the oil. Speak to your lawyer (or find a lawyer) so that you can begin this process. The appeals lawyers at Spolin Law P.C. are available to review cases and make recommendations.

To speak with a criminal law attorney or staff member at Spolin Law P.C., call us at (310) 424-5816.

The California Supreme Court sided with a Spolin Law client earlier this month, effectively saving the client from a potential 50-year-to-life sentence.

Spolin Law represented the client throughout the appeals court process. Earlier this year, attorney Aaron Spolin had won the client’s matter in the California Court of Appeal. When the prosecutor appealed the Court of Appeal’s ruling, the California Supreme Court sided with the Spolin Law client by denying the prosecutor’s petition for further review and thereby settling the matter in the client’s favor.

This is the conclusion of a months-long appellate battle that began when Spolin Law won a hearing in May, which situated the client in juvenile court for a double-murder trial involving elements of self-defense.

After Mr. Spolin won the hearing that would allow the client to be retained in juvenile court, the Los Angeles County District Attorney’s Office appealed the finding to the California Court of Appeal. They argued that the lower-court judge had abused her discretion in ruling for the Spolin Law client and had improperly applied the law. In the defense response, Mr. Spolin argued that the lower court had ruled properly due to (1) new changes in the law enacted by Proposition 57, (2) the intent of the recent proposition coupled with clear legislative intent, and (3) the client’s lack of sophistication, prior trauma, clean record, and ability to be rehabilitated.

To view the table of contents outlining Spolin Law’s appellate arguments, click here.

After Spolin Law won in the California Court of Appeal, the California Supreme Court effectively sided with the Spolin Law client by rejecting the prosecution’s attempt to overturn the lower court’s finding. Because the California Supreme Court is the highest court with regard to California law, there is no further court to which the prosecution can appeal. Therefore, this appellate issue is finally and permanently resolved in favor of the Spolin Law client.

Speak to a Criminal Appeals Lawyer at Spolin Law P.C.

Spolin Law founder and former prosecutor Aaron Spolin is ranked in the top 1% of criminal law attorneys in the state of California. He is an award-winning Los Angeles criminal appeals attorney and, along with the other attorneys at Spolin Law, has been on the winning side of hundreds of cases. For questions regarding how a criminal appeals attorney may help you appeal your case today, please call (310) 424-5816.

Earlier this week a Spolin Law client visited the firm’s office to celebrate his newfound freedom. After two years of work by the firm, the client’s life sentence was dismissed, and he was finally released shortly before the office meeting.

The client and his family celebrated with Spolin Law attorneys and staff. Pictured, right to left, are Aaron Spolin (attorney), C.T. Jr. (client), Caitlin Dukes (attorney), Hemi Tann (case manager), C.T. Sr. (client’s father), Michael Alfi (firm mailroom manager), D.T. (mother), and T.A. (fiancé).

The client’s fiancé, father, and mother were present at the happy occasion. Spolin Law employees present also included attorney Aaron Spolin, attorney Caitlin Dukes, case manager Hemi Tann, and mailroom manager Michael Alfi.

The client had originally been convicted of murder because a person had died during the course of a robbery in which the client participated. However, the client had absolutely nothing to do with the death, did not want it to happen, and had been powerless to stop the unfortunate chain of events that eventually lead to the death. Notwithstanding this fact, the District Attorney’s Office had charged the client with murder. Based on changes in state law since the conviction, the judge agreed with the Spolin Law attorneys that the client’s murder conviction had to be dismissed, resulting in a re-sentencing that eliminated the life sentence.

The firm had won the client’s case several month ago (see earlier link); however, the CDCR and prison facility had improperly kept the client in custody due to an inaccurate interpretation of the client’s time credits. Spolin Law attorney Caitlin Dukes repeatedly contacted the CDCR to resolve this issue and get the facility to actually release the client. The client is now considering a money-damages lawsuit for improper confinement during the extra months he spent in prison.

“It was beautiful to see their whole family together,” said Hemi Tann, who is a case manager at the firm. “I felt wonderful knowing that we had helped this family get their son back.”

The client has already been offered a job as an auto mechanic and hopes to begin work shortly. He will finally have a chance to make up for the years he lost and start his life over with his fiancé, who supported him throughout the process.

To discuss this case or any other appellate matter with a Spolin Law attorney or staff member, call us at (310) 424-5816.

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.

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.

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.

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.

— 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.