Bill of Rights. (From the public domain.)

Although a relative warned me, when I considered law school, that many lawyers are dissatisfied by the tediousness of practicing law, an essential part of practicing criminal defense — if not all litigation battle — is to meticulously obtain, review, analyze, synthesize, and apply the applicable evidence and law. It often is like panning for gold, sometimes with the appearance of gold specks being few and far between. When a lawyer is passionate for his or her client and the client’s cause, such otherwise tedious work becomes no more distasteful than stretching before taking a long distance run or regularly changing a car’s oil.

Praised be the legal team for Charceil Davis Kellam for successfully panning for such gold, and thereby obtaining a reversal of her three-strikes life sentence for an alleged third drug felony conviction. U.S. v. Kellam, et al.,, ___ F.3d ___ (4th Cir., June 3, 2009). The Fourth Circuit ruled that the federal three strikes law obligates the prosecution to prove beyond a reasonable doubt the existence of two applicable prior convictions, and the identity of the person so convicted.

In this instance, the prosecutor introduced certified court documents of prior drug felony convictions. However, the prosecutor did not produce conviction orders signed by judges, photographs of the convicted defendant, nor fingerprints of the convicted defendant. Although the Fourth Circuit did not say that all of the foregoing items are required at once to obtain a three-strikes sentence, it did show that the absence of all of them are fatal to obtaining such a sentence if the defendant does not stipulate to the prior convictions. Additionally problematic for the prosecutors in Kellam’s sentencing was that at least one of the certified documents included aliases that apparently did not match the names in the then-pending indictment against Kellam, and had partially redacted the social security number and birth date.

The Fourth Circuit ordered a resentencing. On the one hand, Kellam’s alleged relevant prior convictions were in state courts in Virginia and Maryland, which does not pose a geographic problem for the prosecutor to try to obtain more documentation to support a three strkes conviction. On the other hand, the more time marches on, the greater the chance that such documents will have become misfiled, lost or destroyed. Jon Katz.