Jonathan Laurans - Kansas City Appeals Attorney & Post-Conviction: Kansas City MO criminal defense lawyer

Showing posts with label Kansas City MO criminal defense lawyer. Show all posts

Monday, May 16, 2016

Sentencing "Reform":

There has been much clamor recently about the possibility of overhaul and reform in the criminal justice system, brought about by this year's upcoming presidential election. While I believe that ultimately, this is all just lip service and that we will continue with the business of "mass incarceration" as usual, the candidates and the pundits are all posturing with ambiguous phrasing to offer the populace hope that each candidate has compassion for those incarcerated and their families, from their parents down to their children. Don't believe it for a second!

That said, any changes in sentencing - known as "reform" - usually operate prospectively only, meaning that the changes affect future defendants, but not those who have already been sentenced. In other words, rarely does sentencing reform apply retroactively to truly help those already behind the wall.

That said, any time there is sentencing reform, the issue of retroactivity on a case-by-case basis can only be decided in the post-conviction arena of the local trial courts and the regional appellate courts, thereafter. So, if you hear of any sentencing laws being changed now, or soon after the election, contact a post-conviction or appellate lawyer without delay!

If you have a family member or friend who is facing charges, or if you are a lawyer seeking assistance with an appeal or post-conviction matter, please call this office immediately. There are always time deadlines limiting when these claims can be raised. If you wish to learn more about the process, call now.

Jonathan Laurans wants you to be educated as to what you may be facing. If you or a loved one has been convicted of a crime in Missouri, Kansas or Texas, or in any federal court, contact him immediately. Visit his website at www.kansascitymoattorney.com and then call him at (816) 421-5200 for a FREE initial legal consultation.

Tuesday, April 5, 2016

The Right to an Effective Representation Includes Competent Appellate Advice

On Friday, March 25th, the Kansas Supreme Court in State v. Shelly, No. 109,292 and State v. Perry, 109,506 clarified that a defense lawyer's duty as adviser extends past trial/plea and sentencing, to that brief period after sentencing when the client must decide whether to file for appellate review in the Court of Appeals or in the Supreme Court. A lawyer does not fulfill his or her duty in this regard by simply telling the client (1) "appeals never work," or (2) "there's nothing here to appeal." Instead, these cases from the Kansas Supreme Court require defense attorneys to explain exactly what types of issues can or cannot be appealed from the client's trial/plea and/or sentencing, and why or why not an appeal ought to be filed. Only upon receiving informed advice and counseling will a client's initial decision to forego an appeal be held against the client who later files for an appeal beyond the initial deadline for doing so.

To me, this means two things: For potential Kansas clients, do not ever assume your case is closed. Instead, call this office or another experienced appellate/post-conviction attorney who can evaluate whether your appellate rights can be resuscitated. And for practicing Kansas attorneys, in instances where you believe that no appeal ought to be taken but the client is wavering or in disagreement, file the Notice of Appeal immediately (due within 14 days from the date the sentence is pronounced from the bench, as opposed to the later filing of the journal entry), and simultaneously file a motion to withdraw. That way, the client's right is exercised, but a new lawyer will be appointed to either dissuade the client, or pursue the appeal you had no interest in litigating.

Monday, March 14, 2016

The Right to Remain Silent – The Kansas DUI Breath Test Refusal Statute

Did you know that up until last Friday, February 29, 2016, Kansas had a law on the books making it a crime to refuse a breath test? Not only will a breath test refusal lead to a suspended license, in Kansas until last week, it also constituted a separate criminal charge, per Kansas Statute 8-1025. But last week the Kansas Supreme Court ruled that this law is unconstitutional, because it requires citizens to consent to what is tantamount to a warrantless search, or face the prospect of jail time simply for invoking the 4th Amendment right to demand that police produce a search warrant before intruding upon one's home or person. The breath test refusal statute also forced citizens to give up their Fifth Amendment right to remain silent, because remaining "silent" when being asked to give a breath sample is, in and of itself, a violation of the law, and thus a resulting criminal offense.

Last Friday the Kansas Supreme Court struck down this law in four separate cases. I wrote the first brief filed in the Supreme Court challenging this law as unconstitutional. My client's case has yet to be officially ruled upon, but given the other four published decisions, a victory is imminent any day. It's a welcome win for the Constitution!

Friday, March 4, 2016

The Right to an Individualized Sentence

Under federal law, "conspirators" in drug cases are charged, and most often times convicted, under statutes that proscribe penalties based on aggregate drug amounts for all those indicted together. However, when it comes time for sentencing, federal law requires prosecutors to only seek, and judges to only impose, sentences based on individual culpability. Unfortunately, while courts nationwide have adhered to these rules for years, there have been a few prosecutors in the Kansas U.S. Attorney's Office who have either ignored or circumvented the law of individual accountability, instead seeking sentences years in excess of those allowed by applicable law.

Two Fridays ago, on February 12th, one such prosecutor was finally put to the task of defending her practices in this regard. Facing a thoroughly documented brief I researched and prepared, this prosecutor conceded that she had sought a 10-year prison term and a $17 million forfeiture both in well in excess of that allowed by law. We now await the judge's ruling reversing the sentence and forfeiture, which hopefully is just a formality. The lesson? Just because a prosecutor's act looks official, don't be afraid to challenge it! These prosecutors are not infallible, and they can (should) be taken to task for their errors, especially ones they knowingly have been committing against citizens for months or longer across a swath of cases.

Tuesday, February 16, 2016

The Right to Remain Silent – Part 2 of 2

Did you know that simply remaining silent is not the same as invoking your right to remain silent? As ludicrous as this sounds, the U.S. Supreme Court a few years back ruled that silence is ambiguous and confusing to law enforcement. (Maybe they shouldn’t be conducting interrogations and investigations, then?) So, the only legal way to force police to respect your right to remain silent is for you to state plainly and concisely, “I am invoking my right to remain silent. Please cease all questioning efforts now.” The case which leads to this paradigm is Berghuis v. Thompkins, 560 U.S. 370 (2010). Be forewarned, and be vigilant about demanding that the police contact your lawyer, if you have one (or demand that they bring you in front of a judge to appoint you one before speaking at all to these investigators).

Wednesday, January 6, 2016

New Year, Same Old Deadlines!

With the passing of time, the calendar flips once again, now into 2016! Now that the celebrations have died down somewhat, and we are all (or most of us are) back to work, it is a good time to remind inmates and their families that post-conviction time deadlines are continuing to roll past. Get advice immediately about the specific state or federal time deadlines applicable to your case! Do not delay! Cases are dismissed across the country every single day due to procedural default (untimeliness), which means the merits of these cases will never see the inside of a courtroom, and will never be heard.

Tuesday, December 15, 2015

Happy Holidays!

Thank you for reading my blog entries, and perusing my website throughout this fantastic year! Rather than blog about another legal topic, in this installment, I simply will use this medium to wish all of you a very safe, healthy and Happy Holiday Season!

Monday, December 7, 2015

When Two Lawyers are Better Than One.

Earlier this week I was asked to join a defense team defending a young man facing serious prison time for allegedly transporting illegal drugs in a vehicle. At issue, first and foremost, is the manner in which the police conducted their warrantless search of the vehicle, without getting judicial permission (in the form of a search warrant as required by the Fourth Amendment to the Constitution). The current lawyers know that the case is going to need to be appealed because the trial judge has decided to excuse the police officers' decision to search the car using a drug-sniffing dog, in a manner which seemingly is in contravention of recent U.S. Supreme Court precedent. So why bring on board an appellate attorney before an appeal is ripe to proceed? Because an appellate lawyer can help phrase and preserve the issues at trial properly so that the appeal is framed correctly. This is money well spent by the client. A group of well-coordinated defense attorneys, each with different skill sets, increases a defendant's chances against the behemoth power of the state and federal governments.

If you have a family member or friend who is facing charges on the heels of an illegal search by police, or if you are a lawyer seeking assistance with an appeal or post-conviction matter, please call this office immediately. There are always time deadlines limiting when these claims can be raised. If you wish to learn more about the process, call now.

Thursday, October 15, 2015

Sentences Based on Prior Convictions for Drugs or Violence

In Johnson v. United States, 13-7120, the United States Supreme Court on June 26, 2015 struck a blow against sentencing increases based on prior convictions. The Supreme Court ruled that the "residual clause" of the Armed Career Criminal Act is ambiguous, and therefore denies due process to defendants whose sentences were increased under that law. Courts nationwide are starting to reject increased sentences urged by prosecutors, and these judges are doing so by extending the rationale of Johnson to other contexts. Meanwhile, there is litigation sprouting everywhere to test whether Johnson applies retroactively to shorten older sentences handed down before June, 2015.

If you have a family member or friend whose lengthy sentence was based at least in part on prior convictions, or if you are a lawyer seeking assistance with an appeal or post-conviction matter, please call this office immediately. There are always time deadlines limiting when these claims can be raised. If you wish to learn more about the process, call now.

Tuesday, October 6, 2015

How to Cross-Examine the "Expert":

In virtually every single drug case and sex-offense prosecution I am asked to evaluate and appeal, I see the government using "experts" to testify in general terms about their past experience investigating other people charged with crimes (as a way to insinuate that the person on trial at that moment is also guilty). In this installment, I offer commentary on this unfair tactic being employed by prosecutors in trials all over the country, leading to unfair convictions.

By the time cases like these come across my desk, it is too late to mount a challenge to the "expert's" opinion, mostly because trial attorneys do not attack "experts" in pre-trial motions and hearings. And, as discussed in previous blogs, if there is no objection to a specific area of evidence or testimony during trial, then the issue cannot later be appealed. So then, the next best way to handle the damaging "expert" is for the trial attorney to go after him or her with a zealous cross-examination. Attack must be lodged against the "expert's" lack of credentials (i.e., education at a recognized university as opposed to in-house police department classes), lack of acknowledgment across the country as an "expert" (i.e., no published articles, and no listing in any accepted peer-review literature as a national authority on any topics), and lack of a scientific basis for the opinions offered. No defense lawyer should be afraid to expose sham expert testimony.

If you have a family member or friend fighting the battle against a wrongful conviction, or if you are a lawyer seeking assistance with an appeal or post-conviction matter, please call this office immediately. There are always time deadlines limiting when these claims can be raised. If you wish to learn more about the process, call now.

Tuesday, September 1, 2015

Recurring Issues - Installment 3:

Lawyers often ask me, "What issues do you see trial attorneys missing the most during their trials?" It seems that lately, I am evaluating several cases which contain many of the same issues repeatedly overlooked by defense counsel. Last installment, we discussed the concept of “junk science." Before that, I covered "hearsay" and missed objections to it. In this installment, I offer commentary on yet another evidentiary issue arising in trials all over the country, leading to unfair convictions.

"Bolstering by prior consistent statements" - I am addressing this issue in more than one case right now. The typical scenario involves a witness coming in to testify that the victim told the witness of an alleged act (for example, molestation by a family friend or relative) months prior to trial, with the resulting insinuation being, "This isn't a recent fabrication by Victim, because after all, Victim told this story to someone else previously." Of course, the flaws in this logic are several, the most obvious being that a lie told repeatedly is still nevertheless a lie. But it takes a skilled defense attorney to point this out to jurors. In conjunction with my installment last month about "junk science," be wary of "family therapists" and "forensic interviewers" being used by prosecutors to bolster an alleged victim's story through craftily recounting the victim's "prior consistent statements." A wolf in sheep's clothing is still a wolf. And this one usually bites down with a jail sentence!

Tuesday, August 18, 2015

Recurring Issues - Installment 2:

Lawyers often ask me, "What issues do you see trial attorneys missing the most during their trials?" It seems that lately, I am evaluating several cases which contain many of the same issues repeatedly overlooked by defense counsel. Last installment, we discussed the concept of "hearsay" and missed objections to it. In this installment, I offer commentary on another evidentiary issue arising in trials all over the country:

"Junk science" - Prosecutors, especially in sex offense cases, are proffering more and more "soft science" as though it is irrefutable fact. The biggest examples are "forensic interviewers" and "family therapists." Prosecutors bring these people in to testify that these professionals are "experts" who interviewed the purported victims, and can assure jurors that the purported victims have exhibited no tell-tale signs of deception. Stated bluntly, these witnesses are being offered up as human polygraph machines, without credentials recognized by established universities which offer degrees in widely recognized and accredited subjects. In other words, the opinions of these "forensic interviewers" and "family therapists" are loosely based on subjective and unverified social theory, which means that the basis underlying these opinions is "junk science." (The rules pertaining to the admissibility of opinion testimony are complex. The best way for a defense attorney to oppose this evidence is to conduct a vigorous cross-examination of the purported expert, exposing that there are no valid and universally accepted objective scientific studies backing up the conclusions that they are providing to jurors. The most effective way to develop this cross-examination is through preparation before trial of a thorough and exhaustive outline of specific questions, deriving from basic scientific principles including "control groups" and "variable identification/ elimination." Exposing that the "expert" doesn't know of any studies and/or how they were conducted can support a later objection wherein the lawyer asks for the jury to be instructed that the expert's testimony is unsupported and stricken from the record.)

Thursday, August 6, 2015

Recurring Issues - Installment 1:

"Hearsay" - These are statements uttered outside of the courtroom by someone who is not on the witness stand. They are offered into evidence to prove something critical to the ongoing trial, i.e., "the statement is being offered for the truth of the matter asserted." An example would be in a car accident trial, when a police officer testifies that a bystander on the sidewalk remarked that the defendant was the one who ran the red light, causing the collision. The bystander's remark, as relayed to the jury by the officer, is "hearsay" because the bystander is not the one testifying, and the statement wasn't made in court when it was uttered. (The rules pertaining to hearsay are much more complicated and varied. My only point here is that hearsay statements seem rampant in trial transcripts I'm evaluating in appellate and post-conviction litigation, and lawyers are not objecting to them properly.)

Tuesday, July 14, 2015

Does the Law Really Change "All the Time?"

One of the platitudes associated with the legal profession is "The law changes of all of the time." Does it? Well, in slight ways, yes. Here is why. We get our law from three sources: the legislature, the courts, and executive agencies (like the EPA or the IRS). The legislature debates and then votes on "statutes" which are written rules that have the force and effect of "law." These statutes proscribe against everything from usurious interest rates on loans, to crimes and their elements a prosecutor must prove to gain a conviction. While "new" laws are not necessarily being passed by legislative bodies every day, tweaking of existing laws happens quite frequently, almost every legislative session.

Often the legislature delegates its rule-making authority to executive agencies, like the EPA or IRS, which then passes "rules" that accompany the legislature's statutes and further define terms and processes. For example, the IRS tax code is a set of rules defining any number of concepts from "income" to "deductions," which all have the force and effect of law.

Meanwhile, our courts make law every day, when state and federal courts of appeal issue written decisions either affirming or reversing lower "trial court" rulings. These published appellate court decisions are called "case precedents" and are the foundation of what is known as "common law." Lawyers cite to these case precedents when arguing to judges at every level of the court system. For example, a lawyer might lobby, "Your honor, the officer's search of my client's car was virtually indistinguishable from what the state police did in State v. Johnson decided by the Court of Appeals last year, wherein the Court disallowed use by the prosecutor of all evidence wrongfully taken from the suspect's vehicle because there was no legitimate basis for a traffic stop."

What this all means is that no matter how eloquent or smooth an attorney might appear, if that lawyer has not first "cracked the books" to update the research pertaining to your case, the lawyer is nothing more than a "paper tiger" and won't be able to prevail for you over the long course of litigation. Why? Because law changes all of the time! And this is the concept underlying appellate and post-conviction litigation.

Monday, July 6, 2015

Before an Appeal Becomes Impossible - Get that Plea Offer in Writing:

Most of my blog posts explain aspects of the appellate and post-conviction process. However, I still handle several trial court-level cases each year. First off, I spent a great deal of my early career defending people in federal court. Secondly, as an appellate/ post-conviction attorney, if I am going to be second-guessing the trial work of other attorneys, I need to be "in the trenches" with them as well, not just for credibility's sake, but also to stay sharp on how the law is being applied and employed before a case climbs up to the appellate/ post-conviction arena.

Many of my post-conviction clients learn only after having hired me to investigate their cases that there were plea bargains offered to their former trial attorney earlier in their litigation history, which might have been accepted, and which would have given the clients a much better resolution to their cases. Had the plea offers been better communicated, then there is a chance that these cases might have ended long ago, and with smaller amounts of punishment, not to mention avoiding the costs of appellate and post-conviction litigation.

The best practice is to ask your attorney (or the attorney defending your friend or family member) at the very outset of the representation to promise that all plea offers will be communicated and explained in writing, so you all can really take the time necessary to think through all options, understand the potential consequences, and most importantly, compare sentencing exposure both then at the time of the plea offer, and down the road in the future if the offer is rejected and a trial is subsequently lost.

Monday, June 15, 2015

Before an Appeal Becomes Necessary- Finding the Right Trial Lawyer:

Most of my blog posts explain aspects of the appellate and post-conviction process. Recently, I provided perspective about how one should evaluate potential appellate and post-conviction attorneys when looking to hire one for a family member or friend. But perhaps that puts the cart before the proverbial horse. What should one seek when hiring a trial attorney?

Of course, experience and results matter. Criminal litigation is an adversarial process, so just as in athletics, past performance can be a valuable factor in assessing whether a prospective lawyer can help achieve a desired future result. But unlike sports, which are won in large measure due to force and strength, lawsuits are won solely through application of intellectual skill and tactical nous. So, how does one go about choosing the best trial attorney? The myriad of factors to consider could actually take up several chapters of a book. But two things to ask when interviewing a lawyer to handle a criminal case may help ferret out those who litigate from those who may be doing "business by volume": First, ask the lawyer to show you 3-4 recently-filed "suppression motions" (which are written memos to a trial court asking for a specific ruling that part or all of a prosecutor's case evidence be deemed inadmissible in an upcoming trial). If the motions are less than 4 pages in length and do not cite to several published cases of other similarly situated accused citizens in that jurisdiction (i.e., "State of Kansas v. John Doe, 123 Kan. 123 (1900)"), then this is a bad sign. It signifies that the lawyer conducts little to no legal research before filing motions. Secondly, ask the lawyer for his or her views about objections during a jury trial. If the lawyer responds that he or she doesn't like making objections because "it'll make the jurors mad," then this also is a bad sign. It signifies that perhaps this lawyer doesn't research and prepare for legal challenges prior to trial, and is willing to let potential legal errors by the prosecutor or the judge pass without challenge. As mentioned in earlier blog posts, errors during trial which are not objected to, usually cannot later be appealed. In other words, winning arguments for reversal of convictions can be abandoned by the trial lawyer who is unprepared.

Tuesday, June 2, 2015

The Appeal and Post-Conviction Process. Finding a Lawyer:

An incalculable amount of stress and anxiety unfortunately befalls those whose family member, friend or loved one has been wrongfully convicted of a crime, or sentenced excessively. The worst feeling of all is having to watch the world move on while the injustice just witnessed becomes yesterday's news. "It's not supposed to happen here, in this country!" (Sadly, it does every day.) "Life just seems to move on for everyone else! No one's listening!" (No one believes this really happens, until it happens to their friends or family.)

Relief from the stress and anxiety can begin to take place once an experienced appellate/post-conviction attorney is retained. On my YouTube page I've recorded several short videos to assist you in selecting the right attorney for your case. Above all, you must "get in front of" at least 2-3 attorneys, so that there is a basis for comparison. And keep the following in mind: (1) An attorney who doesn't make time for you now, won't make time for you later. (2) When it comes to appeals and post-conviction litigation, "cheaper" is never ever a good thing. These cases grind out for at least 1-3 years. The small fee paid to an inexpensive lawyer will run out quickly, leaving him or her unmotivated to continue with the fighting spirit which is essential if a win is going to be procured. (3) A lawyer who can explain the appellate/post-conviction process to you in easily-understood terms - rather than regale you with "war stories" - is your best bet. If a lawyer can discuss these complex legal proceedings in plain terms, then that lawyer most likely has a mastery of this area of law.

No lawyer can guarantee that the injustice can be remedied. Why? Because every appeal and post-conviction motion is staunchly opposed by the government, and oftentimes the judiciary. While some prosecutors will work with a defense attorney who brings them proof of an injustice, most will not. But the right lawyer can give you and your family member or friend the best chance for success.

If you have a friend or family member fighting the battle for post-conviction relief, or if you are a lawyer trying to surmount the hurdle in the way of receiving a COA, please call this office immediately. There are always time deadlines limiting when these claims can be raised. If you wish to learn more about the process, call now.

Monday, May 18, 2015

The Post-Conviction Process. Part Four - Federal "Certificates of Appealability":

In our last entry, we briefly touched upon what happens if the judge denies a post-conviction claim: Another round of appeals if the case was filed in Missouri or Kansas state court. But if the case instead was initiated in a federal district court, an application for a "certificate of appealability," or "COA," must be made.

The application takes the form of a motion filed in the federal district court, followed by a brief filed in the U.S. Court of Appeals. In the motion and the brief, the inmate or his lawyer must argue that there has been the denial of a federal constitutional right, and the issue is at least "debatable" between judges. This is known as the "reasonable jurists test." While this sounds like an easy threshold to cross - and it was designed by the U.S. Supreme Court to be a very slight and modest burden - federal appellate courts instead have turned the test on its head, making it, statistically speaking, the single hardest burden to satisfy in federal appellate practice. For example, between April, 1996 and July 1, 2014, the Fourth Circuit Court of Appeals was presented with 7,541 "COA" applications, but granted only 22. That is a rejection rate of a staggering 99.75%. The other eleven federal circuits are no less welcoming of COA applications.

That said, the fight must continue to turn this injustice around, and force courts back to applying the "reasonable jurists" test properly. (Last summer, I raised a challenge in the U.S. Supreme Court against the way that the federal appeals courts have been misapplying the "reasonable jurists test," and I will continue fighting this process until there is finally a breakthrough.)

Wednesday, May 13, 2015

The Post-Conviction Process. Part Three - Appeals:

In our last entry, we discussed the most frequently raised issue seen in post-conviction cases pending in Missouri, Kansas and in federal courts across the country (i.e., "29.15" motions in Missouri, "1507" motions in Kansas, and "2255" or "2254" motions in federal court). The issue is "ineffective assistance of counsel," as most prominently recognized in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court case around which so much of post-conviction litigation revolves.

But what happens if the judge denies a post-conviction claim? What happens next? At the state level in Missouri and Kansas, another round of appeals - much like the "direct appeal" after trial - is permitted. But at the federal level, there is no right to appeal the denial of a "2255" or a "2254" motion. Instead, the litigant must ask both the judge and then the federal appellate court for a "certificate of appealability," which grants permission to appeal (and then, only the specific claims listed in the "certificate").

This is not as easy as it sounds. In our next installment, I will offer some statistics which show how difficult our federal courts have made it, to obtain a "certificate of appealability," or "COA."

In the meantime, if you have a friend or family member fighting the battle for post-conviction relief, and feel you need assistance, please call this office immediately. There are always time deadlines limiting when these claims can be raised. If you wish to learn more about the process, call now.

Appeals & Post-Conviction