Attorneys from Ballard Spahr’s Denver office helped win freedom for a pro bono client whose life sentence for non-violent drug crimes was commuted by former President Donald Trump.
Matthew Morr and Mudasar Khan represented Robert Francis, one of 70 people whose sentence was commuted in the last hours of Trump’s presidency. In 2002, Francis was charged with conspiracy to distribute cocaine and possession with intent to distribute. He was offered a plea bargain of 25 to 30 years in prison, but he chose to go to trial instead. Prosecutors added two sentence enhancers and held Francis accountable for greater amounts of the drug, according to the National Association of Criminal Defense Lawyers, and he was sentenced to life in prison.
Morr and Khan prepared a supplementary petition on behalf of Francis, who had previously submitted his own clemency petition in 2018. In the petition, Khan said, they argued Francis received a “trial penalty” — a sentence disproportionately greater than the likely sentence on a guilty plea — and was unjustly punished for exercising his Sixth Amendment right to trial.
Francis’ case was referred to Ballard Spahr by the NACDL’s Trial Penalty Clemency Project, which was launched in 2020 to submit federal clemency petitions for inmates who had been subject to excessive sentences due to a trial penalty. A 2018 report from the NACDL declared the constitutional right to trial “on the verge of extinction,” with more than 97% of federal and state criminal defendants opting to concede guilt rather than going to trial. According to the report, the average post-trial sentence for someone convicted of drug trafficking, manufacturing or importing was 14.5 years, while those who took plea deals received an average sentence of 5.2 years for the same offense.
Morr and Khan started working on Francis’ case in late August, and they submitted the petition in October. The first step in preparing the petition was reviewing Francis’ 2018 clemency petition, Khan said, and the next was digging through his court records for evidence that he had received a trial penalty.
The biggest piece of evidence they found, according to Khan, was an opinion from the 8th Circuit Court of Appeals where the court had attached a copy of Francis’ pre-trial offer. The offer indicated the prosecution was willing to stipulate to a lower drug quantity in exchange for a guilty plea, resulting in a sentence of about 25 years, Khan said, adding that the offer “explicitly threatened a harsher sentence” if Francis didn’t take the plea.
When it came to drafting the petition, Morr said, an NACDL memo on trial penalties offered a framework for getting started. “And then from there, it was really trying to put together a persuasive piece of writing,” he said. “Part of that is trying to identify points that will resonate with your audience.”
One point they thought might persuade the president was the fact that he had previously pardoned people in similar situations. In particular, Khan said, Trump in 2018 had pardoned Alice Johnson, now a criminal justice reform advocate, who had also been serving a life sentence for a cocaine trafficking conviction.
“We just felt a strong connection with Mr. Francis. And I think that has to be there for it to pour through in your advocacy … I think that has to be there to draft a good clemency petition in general,” Khan said.
The attorneys got to know Francis through email and communicated with his sister by phone while preparing the petition. They describe Francis as smart with a positive outlook, despite his circumstances. Francis also had a spotless disciplinary record and had been active in rehabilitation efforts, which the White House noted in its announcement about the commutation.
In the wee hours of Jan. 20, Trump’s final day in office, Khan was refreshing the news section of the White House website when an item appeared announcing the president had pardoned 74 and commuted the sentences of 70 others — including Francis. Morr said he had already gone to bed when the news broke, but he woke up to a “very excited series of text messages” from Khan when he got up to take his puppies outside at 3 a.m.
Francis was released Jan. 21 and will live with his sister in Houston. The father of three “has a very strong family support system in place,” Khan said. “It was great … to be able to finally talk to him over the phone, and he told us he got to hold his grandson for the first time.”
“It’s just hard for me to even process that he’s out of prison now and he gets to spend time with his family,” Khan added. “I can’t even put into words how it makes me feel.”
“When we did speak to him, he expressed pure joy,” Morr said. “His attitude was that he wanted to do something positive with his life going forward.”
According to Morr, Francis asked what he could do to thank him and Khan. “We want you to pay it forward and live a good life, be a good family man,” Morr told his client.
“And [we] strongly suggested he switch his allegiance from California sports teams to the Nuggets and the Broncos,” Morr added. “He did not take up our request.”
Ballard Spahr first started working with the NACDL in 2014 when the organization was seeking pro bono assistance for its Clemency Project 2014, which aimed to secure commutations for non-violent offenders who had been sentenced under harsher sentencing guidelines that are no longer in place. “We had 100 lawyers working on the petitions, including our firm chairman, and received 29 petitions that were granted, which was the most of any large law firm,” said Morr, who was among those working on Clemency Project 2014.
“What I think is unique about our firm is that our pro bono hours count toward our billable hour requirement,” Morr said. The policy allowed Khan, an associate at the firm, to dedicate a lot of time to Francis’ case, according to Morr, who added that the firm’s associate evaluation committee looks “very positively on our associates that are putting in time on pro bono matters.”
“I had the firm’s full support to spend as much time as I needed, just because the stakes are so high,” Khan said. “It’s a man’s life. So I was really appreciative of my firm for allowing me to dedicate that amount of time.”
—Jessica Folker