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Bride Asks to Withdraw Plea in Cliff-Push Murder

A newlywed bride accused of pushing her husband off a cliff last summer asked the court to withdraw her guilty plea. 22-year-old Jordan Graham was to be sentenced this week for the murder of 25-year-old Cody Johnson along a trail in Glacier National Park, Reuters reports. But now, it's unclear if the sentencing will proceed as scheduled. Newlywed Murder In December, Graham pleaded guilty to second-degree murder. Prosecutors claimed Graham deliberately shoved Johnson, her husband of eight days, off a cliff during an argument while hiking a steep trail at Glacier, then lied to investigators and tried to cover up the crime, reports Reuters. In exchange for her guilty plea, prosecutors dropped a first-degree murder charge, which requires premeditation and carries a mandatory life sentence. After striking the plea deal right before the start of closing arguments, Graham admitted her guilt to the presiding judge. She told the judge that her husband had grabbed her hand during the marital dispute and that she "just pushed his hand off and just pushed away." Sentencing Issues The general idea behind pleading guilty is to obtain a lesser punishment. In this case, Graham entered a guilty plea of second-degree murder to avoid a life sentence. Prosecutors also agreed to not discuss premeditation -- the critical difference between first- and second-degree murder -- at trial. But according to Reuters, last week (after Graham told the judge she pushed her husband), prosecutors brought up premeditation and recommended a sentence of life in prison. Graham's attorney says the "life in prison" sentencing recommendation and discussion of premeditation violated Graham's plea agreement. For that reason, Graham's attorney is now asking the court to withdraw her guilty plea. Request to Withdraw Guilty Plea A judge will typically consider several factors in deciding whether to withdraw a guilty plea, including whether the original plea deal was fair. In this case, Graham's attorney believes the prosecution's sentencing recommendation makes it impossible for Graham to be sentenced fairly for second-degree murder. Reuters reports he also asked the judge to rule on a claim of prosecutorial misconduct. The judge will also consider the prosecutors' rationale behind recommending a life sentence -- the seriousness of her crime, her lack of remorse and the possibility she might commit another violent crime -- and make a decision accordingly. Related Resources: Bride wants to withdraw guilty plea in man's death (The Associated Press) Why Do Guilty People Plead Not Guilty? (FindLaw's Blotter) What Is an Alford Plea? (FindLaw's Blotter) Is Pleading 'No Contest' Different From 'Guilty'? (FindLaw's Blotter)
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What Happens After a DUI in a Foreign Country?

Getting a DUI in a foreign country is bad news -- just ask "Star Trek" actor Chris Pine, who had to pay more than $400 in fines and court costs after a drunken-driving arrest in New Zealand, Reuters reports. Although it's unclear how Pine's out-of-country DUI will affect him back in the United States, generally speaking, a foreign DUI can still have an impact after you return to your home country. Here are four things that could potentially happen after getting a DUI in foreign country: Your immigration status may be affected. Although foreigners who are first-time DUI offenders in the United States probably won't get deported unless there are other factors that make it a crime of violence or aggravated felony, the conviction could hurt their immigration status. For foreigners who want to become naturalized U.S. citizens, a DUI could be a roadblock to meeting the "good character" requirement. Expungement may not be an option. Expungement is a legal process that allows a past arrest or conviction to be erased from an individual's criminal record. Depending on the law of the country where your DUI conviction occurred, you may not be able to expunge the crime from your record. If the record isn't expunged, it can come up in background checks. It may impact sentencing for other crimes. Although the DUI occurred in a foreign country, that conviction or arrest can be considered if you're being sentenced for another crime in the States. Repeat offenders tend to get harsher punishments than first-time offenders, so a DUI in another country can still follow you back home and count against you. You may be barred from going back to the foreign country. Visitors with a criminal record may be denied entry into a foreign country. Even high-profile celebrities aren't immune from this: You may recall Mike Tyson was barred from entering the United Kingdom because of a rape conviction. Under UK law, travelers who've been convicted of an offense that includes a prison term of at least four years can potentially be denied entry. Several other countries have similar types of entry laws. Perhaps it's the anonymity of being in a foreign country that causes some people to forget to follow drunken-driving laws. If you're concerned about how a DUI in a foreign country will affect you back home, consult an experienced DUI attorney for more help. Related Resources: Chris Pine Drunken Driving: 'Star Trek' Actor Pleads Guilty To DUI Charges In New Zealand (The Associated Press) Victim of Crime Abroad? Here's What to Do (FindLaw's Blotter) Can You Expunge Out-of-State Convictions? (FindLaw's Blotter) What to Do If You're Arrested in a Foreign Country (FindLaw's Blotter)
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Colo. Pot Law Can Apply Retroactively: Court

A Colorado court has clarified that the state's new marijuana law can apply retroactively to some marijuana convictions. In a decision released Thursday, the Colorado Court of Appeals announced that Amendment 64, which legalized recreational marijuana in the state, could be used to challenge old drug offenses -- as long as the cases were already being appealed when the law took effect, reports The New York Times. What does this mean for those who've been convicted of marijuana offenses in Colorado? Amendment 64 Used to Challenge Old Charges Not surprisingly, this Colorado ruling comes from an old criminal case. Brandi Jessica Russell brought her infant child to a Denver hospital in 2010 for a broken leg, but hospital workers suspected abuse and drug use. Russell was acquitted of child abuse, but a jury found her guilty of possession of methamphetamine and marijuana. She was sentenced to four years of probation. In 2012, Colorado passed Amendment 64, which amended Colorado's Constitution to make legal the possession of less than 1 ounce of marijuana (or marijuana concentrate) for persons 21 and older. Amendment 64 didn't go into effect until 20 months after Russell committed her marijuana crimes, so normally her possession conviction would stand. However, the Colorado appellate court found that if there was a "significant change in the law," convicts were entitled to the benefits of the law on appeal. Since Russell's case was pending appeal when Amendment 64 passed, she could have her marijuana convictions vacated -- as possessing those small quantities of marijuana was no longer illegal. Her methamphetamine conviction, however, was still valid. Not Exactly a Pot Crime Cure-All This new Colorado ruling only applies to convictions that were pending appeal or available for post-conviction relief on or after December 10, 2012. Those who had marijuana misdemeanor or felony convictions on their records from decades past will not be able to have them vacated under this doctrine. Those who were convicted of selling or possessing any quantity of marijuana with the intent to distribute will also be out of luck. Legalizing the recreational use of marijuana in Colorado didn't mean the end of marijuana crimes. In addition, Colorado employers can still fire employees who test positive for marijuana -- despite the drug's legal status in the state. If you have a question about your drug conviction and your rights on appeal, you'll want to contact an experienced criminal defense attorney today. Related Resources: Colorado Appeals Court: Some Marijuana Convictions Can Be Overturned Under New Law (The Associated Press) Colo.'s Marijuana DUI Law Opens Door to Defense (FindLaw's Blotter) Is It Legal to Mail Marijuana? (FindLaw's Blotter) Pot Users Have No Job Protection, Colorado Court Rules (FindLaw's Courtside)
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Women Criminal Defense Attorneys: Ellen Brotman’s Zealous Defense of Army General Yields Unprecedented Victory

Ellen Brotman of Montgomery McCracken has been at the center of a rare case that has captured the world’s attention. Brotman, along with partner Richard Scheff, is defending U.S. Army Brig. General Jeffrey Sinclair in a sexual assault court martial being held in Ft. Bragg, NC.  It has been publicized that this is the highest ranking military officer ever court martialed in this country for sexual assault. General Sinclair was charged with sexually assaulting an army captain whom he was having an affair with.  The case has received constant media attention since 2012 when the charges were announced.  The case has been a roller coaster ride, with the kind of twists and turns that only a trial battle can produce. Earlier this year, the trial was postponed when the victim lied about her discovery of electronic communication between herself and the General that had never been turned over and was the subject of a motion to dismiss.  Shortly before the trial was scheduled, the lead prosecutor abruptly quit the case.  Just before the trial started, the General entered a plea to lesser charges of having improper adulterous relationships with female officers and possession of pornography, all of which are not civilian crimes but are military crimes. The defense team described the plea as a strategy to focus the trial on the most serious offense of sexual assault that could have subjected the General to life in prison and registration as a sexual offender. The trial began in early March, and Ellen Brotman delivered a masterful opening statement to an all male jury comprised entirely of higher-ranking two star generals.  It is hard to imagine a more intimidating jury, but Brotman methodically laid out the details of their defense: that General Sinclair was in fact the victim of an infatuated lover who became vindictive when she found out about his sexual flirtations with other women, and angry that he would not leave his wife. Brotman read excerpts from the victim’s journal and identified the specific evidence that supported their defense. That same day the emotional victim took the stand and tried to explain why she continued to have a sexual relationship with the accused after he sexually assaulted her. The case came to an abrupt halt last week when the Judge, Colonel James Pohl, ruled that there was “undue command influence” over the military’s refusal to consider a plea offer after multiple emails emerged which exposed the Pentagon’s influence over the case. The jury was released but the Judge refused to dismiss the case. However, he did order that the General be offered a plea deal.  Just this Monday, the General entered a plea to a lesser offense and the military dropped the more serious sexual assault charges.  The sentence hearing is ongoing.   The defense and military entered into a plea agreement which includes a “quantum” which is essentially a sealed agreement protecting the General from facing a sentence beyond that agreed to in the quantum.  The Judge will impose a sentence without knowing the quantum and the General will face the lesser of the Judge’s sentence or the quantum. (Don’t you wish we had that option in civilian cases?) Without question the military’s case began to unravel…but this would not have happened without the dedication and passion that Ellen Brotman and the other members of the defense team brought to this case. They left no stone unturned and explored every possible lead that ultimately exposed fatal flaws in the military’s case. And they did this successfully while working within a system that many criminal lawyers would consider foreign.  Congratulations to Ellen Brotman, Richard Scheff, and the entire trial team, you make us all proud!
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I-80 Drug Stops, Seizures Set Off Lawsuits

A Nevada sheriff is taking flak for his practice of stopping suspected drug runners on a rural stretch of Interstate 80 and confiscating their cash. Humboldt County Sheriff Ed Kilgore assured skeptics that the drug stops were not illegal shakedowns but lawful civil forfeitures, reports The Associated Press. Are these I-80 stop-and-seizures in step with the law? Seizing Drug Money Legally Two men have filed lawsuits against Humboldt County in federal court, alleging that deputies made illegal searches and seizures when stopping vehicles along I-80 near Winnemucca, Nevada, reports the AP. The plaintiffs were both out-of-state drivers who had been stopped in Nevada by Humboldt County deputies, who allegedly offered them their freedom in exchange for their cash and weapons. Officers can legally seize money they believe is evidence or the proceeds of criminal activity, but they need to have probable cause. This means Humboldt sheriff's deputies must have reasonable suspicion of criminal activity to stop a vehicle on I-80, and then probable cause to search the vehicle for evidence of a crime before any "drug money" can be seized. In the two lawsuits, the plaintiffs allege there were no arrests made and no drugs found, reports the AP. Without the discovery of illegal drugs or other evidence to arrest the drivers, how could these officers legally keep the cash? Civil Forfeiture Proceedings Once property is legally seized by law enforcement officers -- by warrant, probable cause, and/or community caretaking duties -- it is subject to forfeiture. In criminal forfeiture, a conviction against a defendant is used as evidence that the property was, beyond a reasonable doubt, the instruments or proceeds of a crime. In one drug case, police were forced to return marijuana to an arrestee who was released after the state's pot laws changed. However, even if a suspect isn't charged with a crime, the government can use civil forfeiture proceedings to take money they believe is involved in the drug trade. A person can save his property from forfeiture by providing evidence that the money is lawfully his, and rebutting the government's claims of illegality. It may be difficult, but it isn't impossible. In another notable case, an ex-stripper was successful in retrieving more than $1 million from forfeiture by proving she had made the money via lawful activities (i.e., stripping) and not drug dealing, as troopers had alleged. So while the system seems to favors forfeiture, if the plaintiffs in the I-80 drug stop lawsuits can prove their seized cash is legit, they should be able to get it back. Related Resources: I-80 drug stops: Rural Nevada sheriff defends tactics (Examiner.com) Property Seizure in the War on Drugs (FindLaw's Blotter) Show Him the Money: Standing to Challenge Forfeiture of Drug Cash (FindLaw's U.S. First Circuit Blog) Crime Pays, But Criminals Must Repay Everything in Forfeiture (FindLaw's U.S. Eleventh Circuit Blog)
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What Is a Retrial? When Can You Get One?

What is a retrial, and who is entitled to one? Retrials are in the news this week. Convicted Arizona murderer Jodi Arias will be retried, but only to determine her punishment for killing her boyfriend in 2008; jury selection is set to begin September 8, The Associated Press reports. And in another high-profile case, Michael Dunn, the Florida man who allegedly shot and killed unarmed teenager Jordan Davis over loud music, will be retried for murder beginning May 5, the AP reports. So how do retrials work in our criminal justice system? What Is a Retrial? A retrial is quite literally a second (or third) trial on an issue that has already been tried. In Jodi Arias' case, jurors were unable to reach a verdict on how she should be punished, so an entirely new jury will need to hear the facts of the case in order to make the same determination. In most cases, a retrial is ordered because a judge has declared a mistrial, or a reason why the current trial must be considered invalid. A mistrial can occur because of something as innocent as a hung jury or something more malicious like juror misconduct. Sometimes a case will be appealed and then overturned by an appellate court, which will then order a retrial in order to have the facts heard in accordance with its ruling. In every other way, a retrial is just like a normal trial. And assuming there is no reason to challenge the trial court's findings, the conclusion of a retrial will be the final word on the case. Who Gets a Retrial? In order for there to be a retrial, there must be a legitimate reason for the original trial to be declared invalid. Like with Jodi Arias, a hung jury is a very common reason to declare a mistrial, but the retrial will only need to cover issues of fact where the jury was not unanimous. Since the Arias jury already unanimously voted to convict her of murder, the retrial will only cover the issue of punishment -- not guilt or innocence. That's different from the case of Michael Dunn, who will be retried on the charge of first degree murder. Dunn has already been convicted of attempted murder and weapons charges, but a new jury will hear evidence that Dunn should be convicted of murder for Jordan Davis' killing. In many cases, like Dunn's, the decision to seek a retrial is up to the prosecution, who can decide whether or not to drop the case. To learn more about criminal procedure and the justice system, check out FindLaw's comprehensive section on Criminal Law. Related Resources: Arizona jury to consider again death penalty for Jodi Arias in September (Reuters) When Can You Get a New Trial? (FindLaw's Blotter) Lies in Jury Selection May Lead to New Trial (FindLaw's Law and Daily Life) Kennedy Cousin Michael Skakel to Get New Trial (FindLaw's Blotter)
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Army General in Sex Case Gets Plea Deal

An army general accused of sexual assault accepted a plea deal in exchange for dismissing many of his serious criminal charges. Brig. Gen. Jeffrey A. Sinclair appeared in military court at Fort Bragg, North Carolina, on Monday and admitted to lesser charges in exchange for prosecutors dropping counts which included allegations of death threats and forcing a former mistress to perform oral sex, The New York Times reports. How does Sinclair's plea wrap up this ugly case? General to Leave Military Sinclair could have faced the possibility of life in prison under the original charges, but with this new plea bargain, the Times reports that he will be forced out of the military but may avoid jail or prison time. According to Sinclair's defense, this was "one of the first courts-martial of a general in nearly 60 years," reports Reuters. Sinclair's advanced rank may be one of the reasons his case has garnered so much publicity. The military has been plagued with reports of increasing sexual assaults among its ranks, with fears that superior officers and the assault reporting system encouraged victims not to go public with their stories. Many of these assault cases are even dispatched without involving a military court judge. More serious charges, like those in Sinclair's court-martial, are heard by a judge and can even involve the death penalty. In exchange for dropping the sexual assault charges, Sinclair agreed to accept responsibility for having a "three-year extramarital affair" and for "maltreatment of his accuser," reports Reuters. Case Compromised by Chief Accuser The chief witness in the prosecution's case against Sinclair, a female Army captain and Sinclair's former mistress, had her testimony called into question after a pretrial hearing in January. According to the Times, prosecutors concluded that the captain may have perjured herself, jeopardizing her credibility. The witness had testified earlier in March that Sinclair had threatened her and forced her to perform oral sex, but she was never cross-examined. The Times reports that if she is called again to testify during a sentencing hearing, Sinclair's defense may call on the captain to explain contradictions in her testimony. The general still must be sentenced for the counts to which he's agreed to plead guilty, and the defense is arguing for no jail time. The Times reports that Sinclair's defense contends that similar cases have warranted no time behind bars, simply for the officer to step down and pay a fine. Related Resources: Defense: Sex assault charges dropped in brigadier general's court-martial (CNN) Military Sex-Assault Reform Bill Fails in Senate (FindLaw's Blotter) How Does a Military Court-Martial Work? (FindLaw's Blotter) Browse Military Lawyers by Location (FindLaw)
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