Articles Posted in Criminal Appeals

On Thursday, March 27, two men who were convicted of sex offenses had their convictions overturned by the Maine Supreme Judicial Court, according to The Bangor Daily News. The two men include 32-year-old Spencer T. Glover of Bryant Pond, and 41-year-old Jason M. Lovejoy of North Carolina.

In August of 2012, Lovejoy was sentenced to 20 years in prison with all but 16 suspended after being convicted on two counts of Class A gross sexual assault; he was also given 10 years probation.

Glover was convicted of Class B gross sexual assault, and sentenced to 10 years in prison, three years of probation with all but six years suspended in July of 2012.

In both cases, the state supreme court reversed both convictions after determining that in the two separate cases, jurors had been advised that the defendants refused to cooperate with investigators. Glover also refused to submit to a DNA test, which led prosecutors to suggest that his refusal implied his guilt. The justices ruled that Glover had a right to refuse testing, and prosecutors should not have suggested his refusal indicated his guilt to jurors.

In Lovejoy’s case, the defendant hung up on investigators when he was under investigation, and would not return their telephone calls. According to the justices, Lovejoy was denied a fair trial because prosecutors made statements regarding his “silence” to jurors, which justices said was Lovejoy’s right under the Fifth Amendment, he simply invoked his right against incriminating himself.

Glover allegedly sexually assaulted a friend who was sleeping in his home in January of 2011; he alleged that the sex was consensual, and that the two had consumed alcohol that evening. Lovejoy was accused of sexually abusing a female relative when she was between 5 and 8 years old; she reported this to Portland police in 2010 when she was 15 years old.

American Civil Liberties Union of Main Foundation legal director Zachary Heiden said that “Amendments were put in place for a reason, and prosecutors can’t just pick and choose when they apply.”

In Maine, Class A gross sexual assault is a felony which leaves the defendant facing a fine of up to $50,000 along with a maximum prison term of 30 years. In Michigan, the most serious sex crimes are charged as first-degree criminal sexual conduct; those convicted may face up to life in prison, along with other penalties.

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In 2009, Lam Luong, a Vietnamese immigrant, was convicted of capital murder in the deaths of four children who were thrown off the Dauphin Island Bridge in Mobile County in Alabama in January of 2008. In 2013, the Alabama Court of Criminal Appeals reversed Luong’s conviction. Now, the Alabama Supreme Court has ruled that the decision made by the appeals court was wrong. Luong is now once again facing execution, according to a news article at U.S. News & World Report.

In 2013, Luong’s conviction was reversed by the Alabama appeals court after it was determined that the denial of funds for the defendant’s defense lawyer to travel to Vietnam was an error made by the trial court, and that pretrial publicity was prejudicial. On March 14, the Alabama Supreme Court determined that the lower court’s decision was wrong in a 5 to 3 ruling. State Attorney General Luther Strange said that he was “thankful” that the supreme court heard prosecutors’ arguments, and that Luong’s conviction and death sentence will stand.

The four children thrown off the bridge included three of Luong’s own, and one which belonged to his wife from a prior relationship. Kieu Phan said in court that Luong had been unemployed, and that he was seeing another woman. She also testified that Luong had been using crack cocaine.

Justice Lyn Stuart of the Supreme Court wrote that the defendant’s attorneys did not provide the court with detailed information regarding the defendant’s childhood which would support that important evidence would be obtained through a state-paid trip to Vietnam. She also wrote that in reviewing the record, there was no indication that media coverage would have incited indignation, anger, or revulsion to the extent that the jurors which were chosen could not have decided the defendant’s innocence or guilt based only on the evidence. Three of the Supreme Court justices who did not agree with the court’s decision felt that the media coverage in the case was “sensational,” and that it was difficult to imagine a criminal case involving more prejudicial publicity.

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In August of 2010, Lois Kay Cloud was convicted of hiring a hitman to kill her husband, Kenneth Cloud. Cloud was sitting in his truck outside a Burgers and Beer restaurant and was struck in the neck by a bullet when Vincent Lee Accardo, the alleged hitman, fired a gun. Lois Cloud was with her husband, but was standing outside the vehicle at the time of the shooting and was not injured.

The murder of Kenneth Cloud, who was a wealthy Yuma farmer, occurred in 1997. Accardo, the hitman Lois Cloud allegedly hired, died from natural causes in 2011 while in prison for the murder; he had been sentenced to death.

Lois Cloud was sentenced to life in prison after being found guilty of first-degree murder, facilitation to commit first-degree murder, solicitation to commit first-degree murder, and hindering prosecution. Cloud appealed her life sentence to the Arizona Court of Appeals, her attorney arguing on her behalf that there was insufficient evidence to support her conviction, that several errors were committed during the trial, evidence was improperly admitted, that Cloud was deprived of her right to a speedy trial, prosecutorial misconduct, and more.

The appellate attorney also argued that the Yuma County Superior Court abused its discretion during the trial when Cloud’s request for a mistrial was denied. She requested a mistrial alleging improper testimony and late-disclosed evidence. Conversations which were recorded between Cloud and Accardo during a wiretap investigation were also admitted in court, another fact which the appellate attorney challenged.

The appeals court determined in its 21-page decision that Cloud’s conviction and sentence would remain, and that there were no reversible errors.

Michigan criminal appeals lawyers understand how difficult it is to have a conviction or sentence overturned, even when it seems you have a solid argument. It is rare that an appeals court agrees with a defendant and overturns a conviction or sends a case back to court for resentencing. However, one critical key in success with an appeal is having an attorney who is skilled and highly experienced in the appeals process.

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In May of 2010, former Marine John Thuesen went on trial for capital murder in the shooting deaths of Rachel and Travis Joiner, Texas A&M student siblings who were found dead in their home in College Station. Rachel Joiner was Thuesen’s ex-girlfriend; it is believed Thuesen killed her out of jealousy shortly after she began a relationship with an old boyfriend, Jonathan Mathis.

Thuesen was convicted of the murders in 2010, and has been on death row ever since. According to Gosanangelo.com, Rachel Joiner had asked Thuesen for ‘space’ about a week prior to her death, and was spending time with Mathis, a man she had been involved in an on and off relationship with. News reports indicate that Travis Joiner was simply in the wrong place at the wrong time.

Rachel Joiner spent the night at Mathis’s home on the evening prior to her murder; on that evening, Thuesen came to Mathis’s home where Joiner took him into another room to talk. Mathis said he did not know how Thuesen knew where he lived. The next day Thuesen allegedly waited down the block from the Joiner’s home for hours, according to neighbors who said he had the windshield facing the home. A neighbor heard gunshots when she came home from her job on her lunch hour to pay a bill.

In appealing his conviction, Thuesen’s attorneys contended that their client did not mean to kill the siblings, and that he was mentally impaired as he was suffering from PTSD after leaving the military. There were 45 claims of error asserted by the defendant and his lawyers n the appeal, the majority of which had to do with juror instruction, evidence, and objection rulings made by the trial judge.

The state’s court of criminal appeals judges rejected those claims, ultimately upholding Thuesen’s death sentence.

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In 2002, Sarah Jo Pender of Indiana was convicted of double murder in the shotgun killings of Tricia Nordman and Andrew Cataldi in 2000; the victims were Pender’s roommates along with her boyfriend, Richard Hull. According to USA Today, Nordman and Cataldi were Nevada fugitives who were dealing in drugs along with Hull. Pender has maintained her innocence, claiming that while she assisted him by purchasing a shotgun and helping Hull cover up the crime, she did not commit the murders.

Pender met Hull when she was 21 years old at a concert; the two began sharing a home with Cataldi and Nordman. On October 24 of 2000, Pender claims that she left the house when her boyfriend and Cataldi became involved in an argument concerning drugs and cash. When she came back later that day, she claims the home was dark and “blood soaked.” Hull had allegedly gunned down Nordman and Cataldi using a 12-gauge shotgun Pender had bought at Walmart earlier that same day. Pender said in an interview that she had no choice but to help Hull get rid of the bodies, which were dumped in a trash bin a few blocks from their home. Otherwise, she said, she would have become his third victim.

There was no solid physical evidence tying Pender to the murders, however prosecutors and police believed that she used her sex appeal and intelligence to pull the strings, calling her a master manipulator before the jury. In 2013, the prosecutor in Pender’s case, Larry Sells who is now retired, said that evidence had been discovered that raises doubt about Pender’s conviction. Pender was sentenced to 110 years in prison for the murders, while former boyfriend Hull was sentenced to 90 years.

Pender appealed her conviction last year based on the newly discovered evidence found by Sells, a “snitch list” that at the time of the original trial Sells and Pender’s defense attorney were unaware of. Sells believes now that he won the defendant’s conviction in 2000 on the basis of what he called “dubious testimony.” The Indiana Court of Appeals judges were not swayed by Sells’ findings, and upheld Pender’s conviction.

Ultimately, Pender freely admits that she did help Hull by purchasing the shotgun and helping him dispose of the body; however, the maximum sentence for the crime she feels she committed would have been served long ago.

Michigan criminal appeals attorneys know that winning is not easy, as is clear in this Indiana case. It hardly seems justice that Pender is serving 110 years for assisting Hull, when he is serving 90 years. Should Pender spend the remainder of her life locked behind bars? Apparently the Indiana Court of Appeals thinks so.

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In June and August of 2011, Monroe County Sheriff’s Deputy Ian Glick conducted searches on property owned by a family with licenses to grow a specific amount of marijuana to be used for medical purposes under MMMA (Michigan’s Medical Marijuana Act). Gerald Duval Jr., one of the property owners, is classified as a patient under MMMA; Duval’s two children are registered under MMMA as both caregivers and patients, according to Courthousenews.com.

The investigation revealed that the Duval’s were growing more than 211 marijuana plants on the property, located in greenhouses within barbed wire and chain link fences. Ashley and Jeremy Duval, Duval’s children, are allowed to grow up to 72 plants each as patients/caregivers. Duval himself is permitted to grow as many as 12 plants. News reports indicate that Gerald and Jeremy Duval tried to suppress evidence obtained in the searches, maintaining that they were permitted to grow a certain number of marijuana plants under MMMA. The June search of the property resulted in the discovery of 144 live marijuana plants; after receiving a tip, the property was searched again in August, when an additional 67 plants were found. Ultimately, it was determined that 211 marijuana plants were being grown, more than allowed under the MMMA.

Gerald and Jeremy Duval were eventually charged with drug trafficking and convicted. Gerald was sentenced to 10 years in prison, while Jeremy was sentenced to 5 years. The Duval men appealed the conviction, claiming that because Glick and other law enforcement officials had visited the farm on other occasions for other purposes, they were aware the marijuana was there, making the search warrants invalid. The defendants also challenged the origin of the search warrants, claiming that the state magistrate granted the warrants, which should have been obtained from a federal magistrate.

In April of 2013, we wrote about the successful appeal of Shawn D. Gardner, a Flint man who had been convicted of murdering Lennon Johnson Jr. outside a Flint nightclub. Johnson’s conviction was reversed by the Michigan Court of Appeals based on ineffective counsel during his 2011 trial.

The appeals court determined that Mark Clement, Johnson’s defense attorney at trial, did not provide his client effective counsel. Polygraph evidence of a witness who pinned the fatal shooting on Ricco Holmes, a man allegedly involved in the murder with Gardner, was allowed at trial. Clement did not object to the polygraph evidence. Gardner was ultimately convicted of second-degree murder in March of 2011 and sentenced to 80 to 120 years in prison.

Gardner’s new trial began on February 4; he is being represented by Michael Ewing. Johnson’s former attorney said regarding the polygraph statement presented by prosecutors that there was nothing he could have done, the statement was already out there.

Following the appeals court’s ruling, Genesee County Prosecutor David Leyton said that he was disappointed in the results, and that Johnson’s conviction was reversed by the appeals court due to Clement’s actions.

It will be interesting to see how the new trial progresses, and whether Johnson is once again convicted for the murder of Lennon Johnson Jr.

Michigan criminal appeals attorneys understand how rare it is to have a conviction overturned by the Michigan Court of Appeals. Johnson and his new defense counsel have now been given a second chance to reach a different outcome, and perhaps gain Johnson’s freedom. The appeals court rarely reverses a conviction, however the majority of cases involve ineffective assistance of counsel.

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Being convicted of a crime in Michigan can not only take away your freedom, it can affect your employment, reputation, even your immigration status. If you or a loved one have been convicted of armed robbery, home invasion, theft, or even a sex or homicide crime, you may have heard the term ‘post-conviction relief.’ This is a general term often used in regards to appealing a criminal conviction and encompasses various statutory and equitable claims including vacating a conviction, modification of a conviction/sentence, motioning for a new trial, Habeas Corpus petitions, release, etc.

It is important to note that not every defendant may seek an appeal. For instance, someone who pleads guilty to a criminal offense may waive his or her right to an appeal. In a nutshell, an appeal is not a new trial, it is an opportunity in which those convicted may have the decision made by the lower court reviewed by the appellate court. A panel of judges will review trial records to determine whether the defendant’s claims of ineffective counsel, improper testimony, or other grounds for appeal are valid. The job of the appeals court is also to ensure the law was applied properly in terms of the verdict reached and sentencing, and that proper protocol was followed at trial.

The process of appealing is fairly straightforward, however it is essential to obtain the services of an experienced and dedicated Michigan criminal appeals attorney. Your lawyer will notify the appropriate court of your intent to appeal a verdict or sentence, then file a claim on your behalf. In most cases, the defendant will not appear at court. An appellate court panel will review written court documents, which include the documented transcripts taken by the court reporter at trial along with records of the court proceedings and other documents. This is where the experience and ability of your attorney comes in; whether or not the appeal is successful often hinges on the documents and information filed by your criminal appeals lawyer.

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In June of 2012, Albert Lewis Woods Jr., who is now 25 years old, was convicted of robbing a Comstock Park McDonald’s. Woods was sentenced to 25 to 50 years in prison for the crime in which he and Cedric Welch escaped with cash and gift certificates after pulling guns on employees at the restaurant in September of 2011. Now, Woods may have three years shaved off of his sentence after he appealed his conviction and sentence to the Michigan Court of Appeals.

Woods appealed the conviction and sentence on several grounds, including the fact that an arrest warrant was not secured by sheriff’s deputies prior to his arrest, that evidence should have been excluded which was secured after a GPS tracking device was placed on his vehicle without a warrant, and that his Sixth Amendment right to confront a witness against him was violated by the circuit court.

While the defendant appealed on numerous grounds, the appeals court ultimately sent the case back to Judge James Robert Redford for re-sentencing due to a technical error made in scoring “offense variables.” Woods’ conviction was upheld. Now, he may spend a minimum of 22 years in prison as opposed to a minimum of 25 years in the original sentence.

On January 27, Judge Woods determined that Woods could receive the same sentence he received in 2012, however he shaved three years off after hearing Woods’ impassioned plea regarding how he is making an effort to turn his life around. Woods also apologized for his past behavior, and emphasized his renewed faith to the judge. In his plea to the judge, Woods said “Please sentence not the boy from the past, but the man in front of you right now.”

Certainly three years is not significant for an individual facing 25 to 50 years behind bars, however it is a slight victory.

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Nearly one year ago, we wrote about a man whose sentence had been vacated by the Michigan Court of Appeals because the panel felt the sentence of 40 to 70 years was excessive. Robert Schwander is accused of murdering Carly Lewis, a 16-year-old whose dead body was found in a sand pile in June of 2011 in Traverse City. He was convicted of second-degree murder.

Upon appealing the original sentence, the Michigan Court of Appeals found that the 40 to 70 year sentence was outside of state sentencing guidelines, and excessive. In this case, sentencing guidelines are 13 1/2 years according to a news article at Upnorthlive.com.

While Schwander apologized to Judge Philip Rogers for his actions, Rogers again sentenced him to 40 to 70 years after listening to both sides. The judge explained to the defendant that what he did and who her is as a person would determine his sentence. Those were the grounds that led Judge Rogers to giving Schwander the same sentence he received at his first sentencing.

Craig Elhart, Schwander’s defense attorney, said that the defense had put forth substantial effort in trying to demonstrate to the Court of Appeals and others that the sentence which was originally given was inappropriate. Following this latest sentence, Elhart said that “It will now be up to the Court of Appeals again, I’m sure to take a look at that.”

Schwander is the son of a Grand Traverse County sheriff’s department deputy; he lived with the victim’s family after being thrown out of his family’s home. Schwander and Lewis had allegedly fought about items Lewis believed Schwander had stolen from her home before she was killed.

The minimum sentence for second-degree murder under the state sentencing guidelines is normally 13 1/2 to 22 1/2 years. The appeals court wanted reasons which justified the judge’s “extraordinary departure” from the guidelines. Two of the three judges determined the sentence was excessive, and vacated it sending the case back to court.

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