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Articles by Christopher Zoukis

Fourth Circuit Affirms Ruling That Diagnosis of Intellectual Development Disorder Does Not Qualify as ‘Sexually Dangerous Person’ Under Federal Civil Commitment Statute

by Christopher Zoukis

The U.S. Court of Appeals for the Fourth Circuit affirmed a lower court’s ruling that a man civilly committed under 18 U.S.C.S. § 4247 (a)(7), part of the Adam Walsh Child Protection and Safety Act of 2006 (“Act”), was no longer a “sexually dangerous person.”

As a ...

Washington Supreme Court Strikes Down Pornography Prohibition as Unconstitutionally Vague

by Christopher Zoukis

The Supreme Court of Washington held a community custody condition preventing a probationer from possessing or accessing pornography unconstitutionally vague under the First Amendment because the prohibition also extended to works of art, books, advertisements, movies, and television shows. The May 10, 2018, opinion ruled that though the pornography prohibition was supported by a definition, the definition was vague as well.

“Jim Wilcox” exchanged sexually explicit Facebook messages with 9-year-old K.M. K.M.’s father contacted the police, and an investigation linked the Facebook account to Jameel Padilla. Padilla was charged with communication with a minor for immoral purposes. He was convicted and sentenced to 75 days of confinement and 12 months of community custody.

Padilla’s community custody sentence included several conditions. One condition prohibited him from “possess[ing] or access[ing] pornographic materials, as directed by his supervising Community Corrections Officer” (“CCO”). The condition defined pornographic materials as “images of sexual intercourse, simulated or real, masturbation, or the display of intimate body parts.”

Padilla challenged the condition on appeal, arguing that it was unconstitutionally vague. The intermediate court of appeals upheld the condition. Padilla sought review by the Washington Supreme Court. The Court granted review and reversed.

Washington trial courts ...

Federal Court Suppresses Evidence Where Consent to Search Vehicle Obtained Via Google Translate

by Christopher Zoukis

A federal judge in the United States District Court for the District of Kansas threw out evidence found during a warrantless search of a vehicle when “consent” was obtained from a non-English speaker via Google Translate. The June 4, 2018, opinion found that the defendant did not give unequivocal consent and that it was unreasonable for the officer to rely on Google Translate to obtain consent for the search.

On September 21, 2017, at about 3 a.m., Kansas Highway Patrol Trooper Ryan Wolting stopped Omar Cruz-Zamora for a suspended registration.

Cruz-Zamora spoke little English, so Wolting brought him back to his patrol car for questioning. He then used his laptop and Google Translate in order to question Cruz-Zamora. When Cruz-Zamora’s information checked out, Wolting issued him a citation for a suspended registration and told him “Adios.”

But before Cruz-Zamora could get back to his car, Wolting asked him (in English) whether he could ask him a few additional questions. During this second round of questions, which again involved Google Translate, Cruz-Zamora revealed that he had $7,700 in cash on him, which he planned to use to buy a car to take back to Mexico.

Perhaps unsurprisingly, the ...

Private DNA Lab Under Fire for Faulty Analysis

by Christopher Zoukis

National Medical Services, Inc. (“NMS”), a Pennsylvania-based forensics and medical lab, was cited in a recent report by the Texas Forensic Science Commission (“TFSC”) for improperly overamplifying DNA during work for a defense attorney. The “overblown” DNA led NMS scientists to conclude that the sample contained more than one person’s DNA, which other experts concluded was not accurate.

Cardell Torney was arrested and charged with sexual assault in 2012. Torney was identified by law enforcement through DNA analysis. Public defenders hired NMS and scientists Phillip Danielson and Christian Westring to conduct an independent analysis of the DNA. When the lab came back with results that suggested the possibility of other perpetrators, the trial court convened a hearing.

Bruce Budowle, former FBI scientist and current head of the Institute of Applied Genetics at the University of North Texas Health Science Center, testified for the government. His findings were vastly different than the NMS results. Budowle said NMS had improperly amplified the DNA and then misinterpreted the results. An expert on the Promega technology used by NMS also testified, saying the company misused the system.

The court agreed, finding the NMS results “incomprehensible,” “uninformative,” and “misleading.” After determining that ...

Your Papers, May I See Your Papers?

by Christopher Zoukis

The United States is one of the only nations left in the world that does not have a national ID card. It also is one of the last remaining places where an individual does not have to show an ID to the police, except in certain circumstances. But, there is a de facto ID card in this country—the state-issued driver’s license. And, thanks to the 2005 Real ID Act, the formerly simple driver’s license is slowly becoming a privacy-flouting national ID card of its own kind.

Real ID requires states to implement minimum standards for driver’s licenses. Pursuant to the law, a state-issued driver’s license must have upgraded security features and provide the holder’s name, gender, date of birth, address, photograph, signature, and identification number. All of this information goes into a national identity system database.

Only 27 states are in compliance with Real ID requirements, however. This is because the federal mandate was not funded and because citizens and legislators alike in some states are not willing to contribute to a Big Brother-style national identity database. Indeed, legislatures in six states have passed laws prohibiting their states from complying with Real ID.

Civil liberties organizations such ...

$9 Million Settlement in Baltimore Wrongful Conviction Case

by Christopher Zoukis

Baltimore officials agreed in May 2018 to settle a claim of wrongful conviction brought by a man who spent more than 20 years in prison for a murder he didn’t commit. The city agreed to pay exoneree James “J.J.” Owens $9 million, the largest settlement in city history, in order to avoid a jury hearing the egregious facts of Owens’ wrongful conviction.

Colleen Williar was raped and murdered in 1988. James Thompson, Owens’ friend and neighbor, decided to try to collect a $1,000 reward by lying to the police about the murder weapon. By the time the Baltimore police were done with him, Thompson had implicated himself and Owens in a crime in which neither were actually involved. They both were tried, convicted, and given life without parole.

It wasn’t until 2006 that the semen found in the victim was tested, and it was immediately clear that it did not belong to either Thompson or Owens. Other evidence that the wrong men had been convicted surfaced, and both Thompson and Owens were granted a new trial. Prosecutors played hardball, refusing to drop the charges unless the men accepted an “Alford plea.” Such a plea would allow for ...

Fired Director of New York’s Criminal Forensic Science Division Alleges ‘Catastrophic’ DNA Errors

by Christopher Zoukis

The former director of forensic science at the New York Department of Criminal Justice Services (“DCJS”) said the Office of Forensic Science (“OFS”) made three “catastrophic” DNA identification errors and falsified a certification document in a fourth case.

The claims were made by Brian Gestring, a member of the state’s Commission on Forensic Science who was recently fired from his position as head of OFS after being accused of sexual harassment. He said the errors exposed a “huge problem” with the forensic science work being done for the DCJS.

“It is clear that all of the components of the Rube Goldberg machine that is the New York State DNA databank must have significant oversight and must be transparent to avoid catastrophe,” Gestring said. “Four catastrophic failures in one year,” he continued. “Would you fly that airline?”

The Department of Criminal Justice Services strongly disputed Gestring’s claim. “This missive by a disgruntled former employee misrepresents the facts,” said spokeswoman Janine Kava. “The Division is unaware of any instances in which an incorrect DNA identification has resulted in a wrongful arrest or prosecution. Mr. Gestring also fails to mention that DCJS has internal processes in place to identify errors ...

New Jersey AG Intervenes in Possible Wrongful Conviction Case, Considers Reforms

by Christopher Zoukis

Newly appointed New Jersey Attorney General Gurbir Grewal has directed his prosecutors to take over an investigation into the 1993 murder conviction of two men who might be innocent.

He also formed a panel to consider whether New Jersey should establish a “conviction review unit” to look at claims of possible wrongful conviction.

Eric Kelley and Ralph Lee were originally convicted of the 1993 murder of a Patterson, New Jersey, video store clerk. Prosecutors alleged that the men beat and stabbed 22-year-old Tito Merino to death during a robbery of the video store. Kelley and Lee confessed to the crime but recanted shortly thereafter.

According to a report from NJ Advance Media, a key piece of evidence was a baseball cap found at the scene. Investigators initially believed that it belonged to the killer. DNA evidence tested in 2014 ruled out Kelley and Lee as the hat’s owner, and the DNA instead pointed to a local man who had just finished a prison sentence for knifepoint robbery that took place a few weeks before Merino’s murder.

The Innocence Project and Centurion Ministries raised questions about the case, and a judge ultimately tossed the convictions. But the Passaic ...

Seventh Circuit Affirms Order Granting New Trial Due to Newly Discovered Evidence

by Christopher Zoukis

The United States Court of Appeals for the Seventh Circuit affirmed a district court’s ruling that a criminal defendant should get a new trial because an audio recording that was favorable and material to the defense was discovered after trial.

Daniel Ballard took out a $280,000 construction loan from State Bank of Herscher (“SBH”) in order to build a house at 3013 Stone Fence Drive in Kankakee, Illinois (the “Stone Fence property”). Ballard soon realized that he needed more money for the project and requested an additional $90,000 from SBH. Due to insufficient equity, the bank would only lend him another $20,000.

Ballard then sought construction loans on two other properties in Bradley, Illinois (the “North Center properties”) in order to cover the difference. In order to obtain the loans, he signed sworn contractor’s statements. In total, Ballard obtained $188,000 in loans for the North Center properties, all of which was used to finish the Stone Fence property.

When a bank employee discovered that Ballard was using the North Center money to complete Stone Fence, the authorities were notified. Ballard admitted to the president of SBH that he misrepresented his work on the North Center properties. The ...

From Abuse of the Body to Abuse of the Mind: Police Use Psychologically Coercive Interrogation Techniques to Produce False Confessions

by Christopher Zoukis

In mid-1997, Michelle Moore-Bosko was raped and stabbed to death in her Norfolk, Virginia, apartment. Based on a tip from a friend of the victim, U.S. Navy sailor Danial Williams was brought in for questioning. After more than 11 hours of interrogation, Williams confessed to the murder and implicated several other men in the crime.

Investigators were able to obtain confessions from three of the alleged accomplices. Although they all told wildly different versions of what happened, Eric Wilson, Joe Dick Jr., and Derek Tice were arrested and charged, along with Williams, for the rape and murder of Moore-Bosko. Williams and Dick pleaded guilty in order to avoid the death penalty. Tice was convicted of murder, and Wilson was convicted of rape.

Prosecutors obtained all four convictions solely on the strength of the sailors’ confessions. There was no physical evidence tying any of the men to the crime scene. Instead, the physical evidence that was obtained tended to rule out all four men as suspects. Additionally, investigators learned that another man, serial rapist Omar Ballard, had written a letter to a friend in which he confessed to committing the crime, alone. Tests of DNA found at the ...


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