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Articles by Dale Chappell

Kansas Supreme Court Holds Prosecutor’s Blatant Lies to Jury During Closing Argument Constituted Prosecutorial Misconduct Requiring Reversal of Murder Convictions

by Dale Chappell

A prosecutor’s lies amounted to prosecutorial misconduct requiring a new murder trial, the Supreme Court of Kansas held in a lengthy opinion exposing at least seven major errors by the prosecution.

The Court began its opinion with the following admonishment: “In a criminal prosecution, the State’s obligation ...

Maryland Court of Appeals Announces Proper Procedure for In Banc Review

by Dale Chappell

In a case where in banc review was improperly granted to review a circuit court’s ruling, the Court of Appeals of Maryland took the opportunity to clarify when in banc review can be granted.

After the circuit court granted Bashunn Phillips’ pretrial motion to exclude evidence from ...

Massachusetts Supreme Court Holds Seven-Year Delay and Inability to Receive Sex Offender Treatment While Awaiting SDP Trial Violates Due Process

by Dale Chappell

“While substantive due process permits limited confinement after a probable cause determination, it does not permit the Commonwealth to hold an individual indefinitely while repeatedly seeking a finding of sexual dangerousness,” the Supreme Judicial Court of Massachusetts said in holding that a seven-year delay in finding ...

New Jersey Supreme Court Holds DNA Exception Tolling Statute of Limitations Applies Only to Suspect Directly Identified by DNA

by Dale Chappell

Tolling of the statute of limitations under the DNA statute applies only to the “actor” directly linked to the crime by the DNA, and not to others involved in the crime, the Supreme Court of New Jersey held. The Court interpreted the word ‘actor’ to mean only ...

Louisiana Supreme Court Holds Counsel’s Failure to Challenge ‘Stark Contrasts’ in Witness ID and Defendant’s Appearance Constituted IAC

by Dale Chappell

Counsel’s failure to challenge the “stark contrasts” between witness descriptions of a suspect and the defendant clearly affected the jury’s conclusion, the Supreme Court of Louisiana held, remanding for a new trial.

With the help of law enforcement, two robbery victims identified Leroy Jackson as one of the men who robbed them. One witness said Jackson “looked a lot like” the robber, and another said he was not sure because “all black people look alike to him.” The details given by the witness to police described a man with a distinct hairline who was larger than Jackson. Jackson was not only smaller, but he was completely bald. Defense counsel ignored these discrepancies and never challenged the witness identifications in court. Jackson was convicted of robbery and sentenced to 50 years in prison. The court of appeal affirmed, and the Louisiana Supreme Court denied Jackson’s writ.

When Jackson filed for collateral review claiming ineffective assistance of counsel, the district court noted the problems with cross-racial identifications and found that Jackson’s counsel was ineffective for failing to challenge the witness identifications. Jackson was granted a new trial, but the court of appeal overturned the district court’s ruling, holding ...

New Jersey Supreme Court Holds Inventory Search May Not Serve as Ruse for Investigatory Search

by Dale Chappell

The Supreme Court of New Jersey held that police may not use an inventory search as a “ruse” to conduct a broader search to support an arrest, finding that police did not have a valid reason to conduct such a search under the facts present in the case.

When Lori Hummel was asked to take a ride to the police station to clear up some unresolved traffic warrants, she agreed, after being told she would be released once finished. The cops lied. In reality, detectives wanted Hummel brought in as a suspect in a murder they were investigating. Detectives assured Hummel she would be let go in time to pick up her daughter from school. Hours later, she was still there, not allowed to leave.

Hummel said she wanted to call a lawyer. The detective said she was “technically” arrested because of the traffic warrants and could not leave, and he ignored her request for a lawyer.

At some point, a detective took Hummel’s purse, and she protested. The detective said she was “in custody” and began leaving with the purse. “Hopefully that $500 ain’t missing out of there,” she said before he left the room ...

ACLU Questions Trade Secrets Protecting DNA Testing Algorithms

by Dale Chappell

DNA testing can be flawed, often in complex ways. However, courts have held that a defendant fighting for his life in court cannot verify if the DNA being used against him was properly tested, because this would require disclosure of the protected trade secrets of the company whose testing algorithms are being used.

The companies that make DNA testing algorithms, such as STRmix and True Allele, don’t have to reveal how their products actually test DNA, and they don’t have to prove that their testing methods are reliable by allowing a defendant to verify the accuracy of the testing methods. Instead, if the company promises that its system is reliable, its word in court is good enough.

The American Civil Liberties Union (“ACLU”) says this is wrong. If defendants cannot confront the witnesses and evidence against them in court, the ACLU says this may violate a defendant’s constitutional right to be able to challenge the evidence against him.

Take Florencio Dominguez, for instance. He was convicted of murder in California, but the DNA results later were found to be inconclusive. The State tried him again, for a third time, but this time using STRmix to test the ...

Kentucky Supreme Court Tosses Evidence Holding Dog Sniff of Nervous Driver with Prior Drug Charges was Unreasonable

by Dale Chappell

The Supreme Court of Kentucky held that a drug-dog sniff based on the nervousness of the driver who had prior drug charges (but not convictions) was an unreasonable search under the Fourth Amendment, requiring suppression of the evidence found in the search.

“This opinion is not for Rakim Moberly,” the Court made clear. “We render this opinion for the untold numbers of innocent Kentucky citizens who have ‘criminal charges’ and may become nervous and sweaty and look around when confronted by police.”

Moberly, who was convicted of drug and gun possession after a 3 a.m. traffic stop, appealed the denial of his motion to suppress the evidence obtained after the police called in a drug dog based on Moberly’s nervous appearance and his prior drug charges. Moberly argued on appeal that the dog sniff was not reasonably connected to the legitimate traffic stop for not having a valid registration. The Commonwealth argued that his nervous behavior allowed the police to further detain Moberly and search his vehicle. Ultimately, the Kentucky Supreme Court agreed with Moberly and tossed the evidence.

In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the U.S. Supreme Court ...

Texas Court of Criminal Appeals Holds Sua Sponte Jury Instruction on Self-Defense Also Applies to Lesser-Included Charges

by Dale Chappell

A sua sponte jury instruction on self-defense for a murder charge applied equally to the lesser-included charge, and a judge’s failure to inform the jury that it could acquit even the lesser charge was “egregious” error requiring reversal, the of Texas Court of Criminal Appeals (“CCA”) held.

The trial court instructed the jury that it could acquit Adrian Mendez of murder if it found that he used deadly force to protect himself in self-defense. Mendez had argued that he stabbed to death a man who was arguing with him when he thought he was reaching for a gun. The court’s instruction to the jury about the self-defense theory was not at Mendez’s request but on the court’s own volition. The jury acquitted Mendez of murder, but it convicted him of the lesser-included charge of aggravated assault. Sentenced to seven years in prison, Mendez appealed, and the First Court of Appeals held that the trial court was required to instruct the jury that the self-defense theory also applied to the lesser-included charge, not just to the murder charge. The State petitioned the CCA, which agreed to hear the State’s appeal.

Texas Code of Criminal Procedure Article 36.14 ...

NY Court of Appeals Affirms Dismissal of DWI for Improper Breathalyzer Refusal Warning

by Dale Chappell

The Court of Appeals of New York found that a driver’s eventual consent to a breathalyzer test was “coerced” and involuntary after police waited more than two hours to ask him to consent to the test. The Court held that the officer’s warning that his refusal could be used against him in court was improper under the law, and that his consent based on that warning required suppression of the evidence.

Donald Odum was arrested for DWI and taken to the police station. Over two hours later, he was asked to submit to a breathalyzer test but declined. The officer warned Odum that if he refused to take a breath test, it would be used as evidence against him in court. Odum then agreed, based on that warning, and the result showed his 0.09 percent alcohol level was just over the legal limit.

He moved to suppress the test results, and the criminal court ruled that because Odum had refused but then consented to the breathalyzer more than two hours after his arrest based on the officer’s erroneous statement of the law, the evidence had to be suppressed.

The State appealed, and the intermediate appellate court ...


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