Tuesday, June 30, 2015

Johnson v. US: A Landmark Decision for Prisoners

Supreme Court Voids Residuary Clause of ACCA in Landmark Decision


By Derek Gilna


            In a  landmark decision  to, the U.S. Supreme Court has struck down, voided, and set aside the residuary clause of the Armed Career Criminal Act (ACCA), while leaving the rest of ACCA intact. The impact of this cannot be overstated for those who received mandatory minimum sentence based upon the residuary clause.

            Simply put, in Johnson v. U.S., 13-7120,  the Supreme Court ruled that a district court as a part of the sentencing process cannot increase a sentence based upon the language of ACCA’s residuary clause; unfortunately, the court said, many district courts have classified as violent crimes offenses which did not rise to the level of violent acts, accepting the argument of prosecutors in almost every instance that they argued for an ACCA mandatory minimum sentence.  I must emphasize the rest of ACCA has been left intact, so if you were sentenced under anything OTHER than the residuary clause, this decision does not assist you.

            Since the residuary clause has been found to be unconstitutional, this means that relief cannot be denied to those whose appeals or habeas corpus claims are still pending. A strong argument exists for vacating the sentences of even those where appeals have been exhausted.  However, the court has not stated that the decision is retroactive in its application, so these arguments must be made with caution.  However, those who received sentences based upon the residuary clause finally have an argument that they can make that the courts will have to listen to. As stated by the Supreme Court, “imposing an increased sentence under ACCA’s residual clause violates due process.”


Derek Gilna, 113 McHenry #173, Buffalo Grove, IL  60089


Monday, June 8, 2015

Smarter Sentencing Act Progresses in House and Senate

Smarter Sentencing Act Continues to Gain Support


By Derek Gilna


In a week where no new Supreme Court decisions impacted prisoners, and no new federal clemency petitions were granted, I turn my attention to Congressional action on the Smarter Sentencing Act of 2015. The Act would reduce the mandatory minimum sentencing for drug offenses, and reduce sentences of “couriers,” defined as those whose “offense was limited to transporting or story drugs or money.”

 I previously reported on the recent Bipartisan Summit on Criminal Justice Reform, where a group of lawmakers, activists, and political operatives from many different ideological backgrounds discussed this bill and others like it.  Conferences like this make it easier for Congressmen and Senators to support prisoner relief legislation.

The conference also focused on the Redeem Act, a bill that proposes a number of reforms on solitary confinement and the sealing of some criminal records, and other legislation that would allow prisoners to access Pell Grants to further their college education while in prison.  These legislative proposals and the positive energy from sentence-relief conferences and news articles have helped to produce a positive energy that will only help the cause of sentence reform.

It appears, although some observers are skeptical, that Democrat Hillary Clinton will run her Presidential campaign from the left, and she has already made noises about pushing sentencing reform.  Rand Paul, on the Republican side, has also been a consistent supporter of reform, and recently gained widespread positive publicity for his defeat of some of the National Security Agencies domestic surveillance capabilities (also widely used for warrantless-and illegal- surveillance of many now in federal custody.)

Meanwhile, the Smarter Sentencing Act continues to steadily pick up co-sponsors, a sure sign that it is gaining momentum in the votes department. As of June 3, the House version had 44 cosponsors from both parties (out of 435 Representatives), while the Senate version had 12 (out of 100 total Senators). Obviously the closer it gets to a majority of each house acting as co-sponsors, the more likely it is to pass and become law. It has not yet been voted out of Committee in the Senate, but that may be attributable more to the fracas regarding the confirmation hearings of the new Attorney General than anything else.


Derek Gilna, 113 McHenry Rd., #173, Buffalo Grove, IL  60089. dgilna1948@yahoo.com. (847) 878-0160.



Monday, June 1, 2015

New Evidence of Serious Prosecutorial Misconduct

Entire Orange County Prosecutor’s Office Disqualified for Misconduct


By Derek Gilna


            An isolated incident or just the tip of the iceberg?  Many of you in custody already know the answer.  The ENTIRE legal staff of the Orange County, California Prosecutor’s Office (250 attorneys) has been disqualified by a federal judge in that state for prosecutorial misconduct, including the systematic concealment of exculpatory evidence and the use of coached, perjured testimony of confidential informants and jailhouse snitches. Judge Thomas Goethals took the extraordinary action after reviewing facts in the case of Scott Dekraai in Santa Ana, California.

            An investigation showed that, coached by prosecutors and sheriff’s deputies,, jailhouse snitches fabricated the confessions implicating dozens of prisoners.  Additionally, prosecutors and deputies constructed an entire computerized data base that remained secret regarding this jailhouse informant system, and concealed its existence despite numerous specific discovery order issued by the Court.

            What does this mean to your case?  My experience shows that state and local law enforcement are much more prone to this kind of affirmative concealment than federal authorities, but this is not always the case, especially where state and federal authorities work together on an investigation.  There is one case in Texas that I am working on where I know that a similar scenario took place.

            However, there have also been dozens of cases that I have reviewed where the entire body of evidence in the case, including many raw investigative materials that might have assisted defense lawyers on the district court level, was either not requested by defense counsel, or not produced. (The Brady case requires ALL of this material to be produced, whether requested or not.)

            The problem of course is proof, and that is always going to be the sticking point.  In instances where true prosecutorial or law enforcement misconduct has occurred, some investigation and digging is necessary.  To convince a court, it is not enough to have a mere suspicion; you must have some hard evidence, either in the form of affidavits, or some other proof to show that you are innocent of the charges of which you were convicted. Whoever you hire to handle your case must also know where to dig, for facts not only on your case, but other related cases in the same jurisdiction, because bad apples come by the basketful, not one at a time.  There are experienced prisoner-rights counsels in these jurisdictions, many of whom have worked with Prison Legal News, handling cases at reasonable costs.  Do you have such a case?


Derek Gilna, 113 McHenry Rd. #173,

 Buffalo Grove, IL  60089.