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Prisoner Education Guide

Articles by Dale Chappell

Colorado Springs Police Target Leftist Group's Peaceful Protest

Undercover officers from Colorado Springs Police Department took the stand to explain why they were ordered by the department to embed themselves in a protest called "March Against Imperialism" in March, which resulted in four of the marchers being charge with obstruction.

"Mark" and "Amy" are undercover officers for the department's Metro, Vice, Narcotics, and Intelligence Division (Metro VNI), who rely on anonymity to infiltrate organizations to gather incriminating evidence against groups targeted by police. They were told by supervisors to join the Colorado Springs socialist organization secretly armed with body cameras to gather evidence against the group.

When the socialist group learned of the undercover officers' infiltration of their organization, they were shocked. David Lane, from the civil rights firm Killmer, Lane and Newman, LLP, out of Denver, took the case and filed a motion to dismiss the charges, arguing "outrageous police misconduct" that violated federal regulations by infiltrating the socialist group, which had no history of or intent to commit violence.

According to testimony by Mark and Amy at an evidentiary hearing in December, Metro VNI had become interested in local leftist groups based on "national trends," such as the anti-facism groups, or "antifa." However, antifa tends ...

Former Illinois State Attorney Indicted: Misconduct, Misappropriation of Funds

by Dale Chappell

A former Illinois state attorney was indicted by a grand jury September 5, 2017, on 17 counts of misconduct and misappropriation of public funds in connection with a special police force he created.

Brian Towne created the State's Attorney's Felony Enforcement (SAFE) Unit in 2011 when he was a State's Attorney. This special police unit was comprised of retired law enforcement officers who Towne authorized to stop and search "suspicious" vehicles for drugs. If drugs were found, police confiscated the vehicle and its contents. SAFE brought in mire than $1 million between 2011 aid 2016, seizing the property of at least 77 motorists along Interstate 80.

The charges allege that Towne used funds from SAFE for personal expenses, such as a $21,000 sport-utility vehicle, $3,000 on a wireless system for his house, and travel expenses for conferences that included a $17,000 per day expense allowance. The charges also allege that he illegally took payments from the State for classes he had taught.

In June 2017, the Illinois Supreme Court ruled that Towne had overstepped his authority as a prosecutor by creating SAFE and that it was not a valid police agency ...

DNA Sketches Answer Prayers, Raise Concerns

by Dale Chappell

When Chantay Blankinship was killed in May 2016 in Brown County, Texas, the police had no leads other than DNA found at the crime scene. Her family isolated themselves out of fear the killer could be right next to them. Then they got a break in the case.

Brown County sheriff’s investigators gave Michelle McDaniel, Blankinship’s mother, a sketch of a man they thought might have been the killer. Within a week, the police had a suspect in custody, who then confessed to murdering Blankinship. But investigators had no witnesses. How did they do it?

DNA sketch technology, known as phenotyping, uses DNA collected from a crime scene to create physical traits of what the person might like, based on certain markers in the DNA. Companies have created a predictive formula for characteristics that match what face-scanning software says those characteristics should be, including the shape of the suspect’s face, skin tone, eye color, and hair color. It is billed as being capable of accurately predicting the physical appearance and ancestry of an unknown suspect.

“My son called me after seeing the sketch and said, ‘Mom, I think I know this kid,’” McDaniel said. The suspected ...

Maine Supreme Court: State Must Provide Evidence to Support Probation Revocation

by Dale Chappell

The State carries the burden of proving that a probationer has violated his probation in order to support a revocation of probation, the Maine Supreme Court held on December 12, 2017.

Cory Kibbe was sentenced in 2004 to 20 years in prison, with all but four years suspended, plus eight years on probation. Kibbe had served his four years in prison when he was arrested in 2017 for violating probation in August and September 2016.

At the revocation hearing, the probation officer (“PO”) admitted Kibbe was released from prison on December 16, 2007, and that Kibbe’s probation would have therefore expired December 2015. The State, though, argued that Kibbe’s prior revocations, which would have tolled his eight years of probation, added another 19 months to the term, meaning he was still on probation in 2016 at the time of the violations. But at the revocation hearing, the State conceded it did not have any documentation to support this at the time, nor could the PO testify with any degree of certainty that Kibbe was on probation at the time of the alleged violations in 2016.

Nevertheless, believing the prosecutor, the court sentenced Kibbe to another four years ...

Texas Court of Criminal Appeals: Right to Appeal Judge’s Questioning Not Forfeited by Failure to Object

by Dale Chappell

The right to appeal a judge’s improper questioning of a witness during trial was not forfeited by the defendant’s failure to object contemporaneously because such an error is not forfeitable and can be raised for the first time on appeal, the Court of Criminal Appeals of Texas (“CCA”) held.

Abraham Proenza was charged with injury to a child after a baby in his care became sick and died after he failed to seek medical help based on what he says was a genuine misunderstanding that he could not seek medical help for the baby. During trial, a witness who was testifying about the misunderstanding was questioned by the judge. When the witness verified that the clinic would not have seen the sick baby had he brought him in because Proenza was not a parent or guardian, the judge seemed incredulous. The judge began asking why in front of the jury, saying that his own doctor did not have such rules. Proenza did not object to the judge’s questioning.

The jury convicted Proenza, and the judge sentenced him to 40 years in prison. He appealed to the Thirteenth Court of Appeals, arguing that the judge commented on the ...

Ohio Supreme Court: Courts Can Seal Case Records Prior to Expiration of Statute of Limitations

by Dale Chappell

A trial court may seal the records of a person whose case has been dismissed without prejudice before the statute of limitations for the offense expires, the Ohio Supreme Court held on September 27, 2017.

In March 2015, Colton Dye was charged by the State for arson and several other criminal offenses. Two months later, the State dismissed the charges without prejudice. On June 23, 2015, Dye filed an application to seal his official records pursuant to R.C. 2953.52(B)(4), which provides for sealing of records after charges have been dismissed. The trial court denied his application because the charged had been dismissed without prejudice and the statute of limitations for the offenses had not yet expired. Dye appealed, and the Fifth District Court of Appeals affirmed the judgment of the trial court. The Fifth District certified that its decision was in conflict with the Eighth District’s decision in State v. C.K., 2013-Ohio-5135. The Ohio Supreme Court agreed to resolve the conflict.

The question before the Supreme Court was whether R.C. 2953.52(B)(4) requires that the applicable statute of limitations must expire before a trial court can grant a person’s ...

Massachusetts Supreme Court: Sleeping Juror Is “Structural Error,” Requires Intervention

by Dale Chappell

The Massachusetts Supreme Court reversed convictions for involuntary manslaughter and assault and battery and ordered a new trial because the trial judge failed to conduct voir dire after the prosecutor advised that some jurors fell asleep during trial.

Anthony Villalobos took his murder and assault charges to trial, hoping for a fair trial. Instead, he watched as the lawyers lulled at least two jurors to sleep. When the jury returned a guilty verdict, Villalobos appealed, raising the issue that jurors were asleep. The Appeals Court rejected his claim, and Villalobos took his case to the Massachusetts Supreme Court.

The Supreme Court determined that the prosecutor’s report to the trial judge that the jurors were sleeping should have prompted the judge to intervene. The judge, though, “simply observed” the jurors the rest of the trial to make sure nobody else fell asleep.

If a judge receives information that a juror is sleeping or is otherwise inattentive, and the judge determines that information is “reliable,” the high court explained that he “must take further steps to determine the appropriate intervention.” Typically, the next step is to conduct a voir dire, or interview, of the inattentive or sleeping ...

California Court of Appeal: Prior Felony Does Not Convert “Wobbler” Into Felony

by Dale Chappell

The fact that a defendant admitted he had prior qualifying felonies for a Cal Pen Code § 665(a) enhancement does not convert his current “wobbler” into a felony, and the trial judge retained authority under section 17(b) to reduce the wobblers to misdemeanors, the Court of Appeal of California, Fifth Appellate District, held. A wobbler is an offense that may be punished as either a felony or a misdemeanor for sentencing purposes, at the discretion of the trial court.

Pao Lee was convicted by a jury for unlawfully driving or taking a vehicle, receiving a stolen vehicle, and carrying two knives when he was caught by police driving that stolen vehicle. Lee had been down this road before; he admitted to having two prior vehicle theft convictions, which brought a section 666.5(a) allegation authorizing a higher sentence for the current convictions.

At sentencing, the State told the judge that the section 666.5(a) enhancement deprived it of discretion to reduce Lee’s wobblers to misdemeanors, because section 666.5(a) “converted” them to felonies. The judge believed the State and said, “this court must” consider the wobblers as felonies because Lee’s admitted prior ...

First Circuit: Plain Error Standard Met When Trial Court Emphasized Erroneous Jury Instruction

by Dale Chappell

The trial court’s repeated inclusion of an erroneous element in the jury instructions amounted to a “plain error,” which led the U.S. Court of Appeals for the First Circuit to vacate the defendant’s conviction.

Jose Lattore-Cacho was convicted by a jury in U.S. District Court of one count of conspiracy in violation of 18 U.S.C. § 1962, a provision of the Racketeering Influenced Corrupt Organization (“RICO”) Act. To convict Latorre of violating RICO, the government had to prove he committed “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical,” and that those activities “affected interstate commerce.”

During oral jury instructions, the district court advised the jury that activity relating to firearms also constitutes racketeering activity. The court twice incorrectly told the jury that “firearms” constitute “racketeering activity” during the course of describing “a pattern of racketeering activity.” The court’s second mention of firearms was emphatic: “But you know from the summary I have given you up to now that the types of racketeering activity are the ones I just mentioned a minute ago ...

Fifth Circuit: “Fugitive from Justice” Enhancement Requires Intent to Avoid Prosecution

by Dale Chappell

The government must show that a defendant had the “express intent” in fleeing to avoid prosecution to prove he was a “prohibited person” under the “fugitive from justice” definition with respect to owning a semiautomatic firearm capable of accepting high capacity magazines, the United States Court of Appeals for the Fifth Circuit ruled on October 31, 2017.

Darrin Soza was found guilty of possessing an AK-47 with an obliterated serial number. At sentencing, the government argued that Soza was a “prohibited person” under U.S.S.G. § 2K2.1(a)(4)(B), which applies a base offense level of 20. Under the sentencing guidelines, there are two relevant definitions of prohibited person: (1) a person who has been convicted in any court of a crime punishable by imprisonment and (2) as per 18 U.S.C. § 922(g), a person “who is a fugitive from justice.”  

The government argued that Soza was a fugitive from justice because he had an outstanding warrant for a violation of his probation from a prior driving while intoxicated conviction. The government attached a copy of the arrest warrant to the presentence report as evidence, which Soza contested was ...


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