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December 12, 2010

Local California judge and former prosecutor supporting three-strike offender's appeal

As detailed in this interesting new AP article, which is headlined "Stanford law students appeal three-strike cases," a defendant appealing his three-strikes sentence in California is getting some notable help from some notable folks.  Here are the specifics:

Nearly 15 years after sentencing, an inmate is getting an unexpected chance at freedom — and the judge a shot at redemption.  Students at Stanford Law School's novel Three Strikes Project, which has successfully overturned 14 life prison terms handed down for non-violent crimes under California's unforgiving sentencing law, are joined by an unusual coalition in their latest bid.  The county judge and prosecutor who sent Shane Taylor behind bars for 25-years-to-life in 1996 now want to help set him free....

Taylor's offenses: two burglary convictions when he was 19, and a third conviction for possessing about $10 worth of methamphetamine.   Under California's three-strikes law, any third felony can earn a repeat offender a minimum sentence of 25 years in prison.  It's a law 26 states and the federal government have some variation of, but none is more punitive than California's.

In response to the law, renowned defense attorney Michael Romano co-founded the Three Strikes clinic at Stanford in 2006.  He said he believes that too often the law fails to distinguish the violent career criminal from bumbling, drug addicted defendants who are sent away for at least 25 years for a nonviolent felony conviction....

On Nov. 15, the Stanford clinic asked the California Court of Appeal in Fresno to toss out Taylor's sentence.  Taylor was drinking beer, listening to music with two friends at a vista point above a Tulare County lake in the wee hours when the police rolled up and found about $10 worth of methamphetamine in his wallet.  That would become strike three.

The judge, Howard Broadman, became haunted by memories of the case, believing he had rendered a bad decision in invoking the harsh law. He regretted that in calculating the prison sentence he hadn't ignored one or both of Taylor's previous felony convictions: Attempted burglary and burglary that netted a homeless and methamphetamine-addicted Taylor a pizza paid for with a forged check.

Broadman called the law school last year after reading about the Three Strikes Project's remarkable success in freeing convicts like Taylor who "struck out" and received identical sentences for nonviolent crimes....

Rather than argue innocence, the Stanford crew contends its clients' prison sentences are illegally harsh and wrongly calculated.  "They have the innocence projects," said third-year law student Susannah Karlsson, who is helping present Taylor. "We have the guilty project."...

The prosecutor is joining Boardman, who is now a mediator in Visalia, in supporting a reduced prison sentence.  The appeal contends that Taylor's public defender at trial failed to tell Broadman about Taylor's horrific upbringing that included sexual abuse, a prostitute mother and early drug use. And Broadman says that, had he known of Taylor's past, he would have doled out a more lenient sentence.

Taylor's trial lawyer has filed a declaration saying he failed to properly represent his client, especially at sentencing when he filed legal papers mistakenly labeling Taylor's last offense as a burglary rather than drug possession.

December 12, 2010 at 01:01 PM | Permalink


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"The prosecutor is joining Boardman, who is now a mediator in Visalia, in supporting a reduced prison sentence.  The appeal contends that Taylor's public defender at trial failed to tell Broadman about Taylor's horrific upbringing that included sexual abuse, a prostitute mother and early drug use. And Broadman says that, had he known of Taylor's past, he would have doled out a more lenient sentence."

Blame it on the public defender! Of course! She was only there defending the client at the time both prosecutor and judge were imposing the sentence. It's obviously her fault. Obviously.

Posted by: Miami Dade Defense | Dec 12, 2010 1:14:23 PM

A burglar gets caught with drugs--how was he supposed to feed the habit? Probably by committing crime. What may seem harsh is actually very lenient--lenient to society. Certainly we can all have sympathy for Mr. Taylor, but meth-addicted burglars are a serious threat to society. Perhaps the news reporter could have mentioned that in the article.

Posted by: federalist | Dec 12, 2010 5:58:13 PM

doug, here are a few comments

I don't know about California's three strike law being the country's most punitive. At least in California one strike has to be violent or serious. Not so in North Carolina. In California, a judge can reduce a felony to a misdemeanor. Not so in NC (although I continue to maintain that California's strange concept of "wobblers" violates the separation of powers clause)

I think that Graham v Florida has opened up a new facial challenge opportunity to three strike laws. Graham says the Eighth amendment requires not only sentences which are not grossly disproportionate, but also requires "graduated" punishment. The more serious the crime the more serious the punishment. That is a facial challenge opportunity to three strike laws as opposed to the as applied approach heretofore authorized by Ewing and Justice Kennedy's test in his concurring opinion in Harmelin v Michigan.

I think Graham is a deep well of opportunities for cruel and unusual punishment claims. The opinion I expected to be issued in Graham was written by Chief Justice Roberts concurring. The plurality's "categorical" approach caught me by surprise. Which I am hoping to take advantage of in the capital context. Graham says traditionally categorical challenges took place in the capital context and as applied challenges took place in noncapital sentences. But Graham reversed that and used a categorical basis in a noncapital case. Does that mean by extension that an as applied challenge under the Harmelin/Ewing test can take place in a capital case.? In other words, a claim can be made that a sentence of death is grossly disproportionate to the facts of the case and therefore unconstitutional on a case by case, or as applied, basis?

I am arguing a Graham based challenge to North Carolina's three strike law tomorrow in a postconviction case.


Posted by: bruce cunningham | Dec 12, 2010 6:22:09 PM

bruce, given the predilections of Kennedy and the libs on SCOTUS to simply impose their preferences on society, I'd hesitate to say you are wrong, but the Graham case really doesn't support (logically anyway, but once again, with the Gang of Four plus Kennedy, you don't know) your view. Three strikes laws impose stiff sentences for repeated failures to conform conduct to what society demands. That's unlike a harsh sentence for a juvenile for a serious crime.

Graham, of course, is simply a raw expression of judicial power. States should do their level best to evade its limitations. The protection of society rests on it. At some point, a constitutional amendment should be considered if SCOTUS continues its lawlessness.

Posted by: federalist | Dec 12, 2010 8:38:19 PM


Graham says, "Embodied in the Constitution's ban on cruel and unusual punishments is the precept of justice that punishment for crime should be
GRADUATED and proportioned to the offense." Roberts, who I would hardly call a "lib" agrees completely with that statement by Kennedy and was upset that Stevens, Breyer, Sotomayor and Ginsburg didn't confine their opinion to that statement rather than the categorical approach employed.

I believe Justice Kennedy's three step test is now clearly established federal constitutional law. You can even read Thomas, Scalia and Alito's opinions as begrudgingly acknowledging that Kennedy's test is the law. Thomas and Scalia say they don't like it but then say there is no inference of gross disproportionality and Alito says the claim is procedurally barred.


Posted by: bruce cunningham | Dec 12, 2010 9:01:13 PM

To know the real local California judge and former prosecutor supporting three-strike offender's appeal, it was detailed above that some defendant getting some great folks. But some cases arguing based of challenge in some places on Carolina.

Posted by: House and Land Packages | Dec 12, 2010 11:04:36 PM


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I have always wanted to try these.
Beautiful, beautiful tree...as always.

- Love the Christmas look to your place here...
Happy Christmas, JennyB!

Posted by: Vimax | Dec 13, 2010 7:48:43 AM

Bruce, I was focusing on the holding, rather than the drivel that made up the opinion.

Posted by: federalist | Dec 13, 2010 9:59:21 AM

Prof. Berman,

It would be appropriate to note that Mr. Boardman was, to put it mildly, controversial as a judge. He is best known for forcing a woman convicted of child abuse to have Norplant implanted in her arm in order to receive probation. He also was censured by the California Supreme Court for willful misconduct before he resigned from the bench. I believe that he went on to act as a "judge" on some sort of game show a few years back.

I submit that former Judge Boardman may not be the most credible source to use to critique any subject, let alone Three Strikes.

Posted by: California Prosecutor | Dec 13, 2010 12:07:36 PM

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