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Disciplinary Self-Help Litigation Manual

Articles by David Reutter

Using Location Surveillance to Fight COVID-19 May Chill Free Speech and Association

As governments act to contain COVID-19, tracing persons who have come in contact with infected persons is at the forefront of the move to contain the disease’s spread. Tracing people via location surveillance may prove to be an effective tool, but at what cost?

The Electronic Frontier Foundation (“EFF”) warns that governments’ use of location surveillance can “turn our lives into open books for scrutiny for police, surveillance-based advertisers, identity thrives, and stalkers.” The information can be used to draw “sensitive inferences,” from visits to a “health center, criminal defense lawyer, an immigration clinic, or a protest planning meeting,” EFF warned in an article.

The “fear of surveillance chills and deters free speech and association,” EFF said. “What’s more, whatever personal data is collected by government can be misused by government employees, stolen by criminals and foreign governments, and unpredictably redirected by agency leaders to harmful new uses.”

Yet several governments have used location surveillance to fight COVID-19. China reportedly built new infrastructures to track movements of massive numbers of identifiable people as a COVID-19 response. Cellphone location data to identify virus carriers was tapped by Israel; it issued quarantine orders based on that information.

The ...

Fourth Circuit: Standalone Rehaif Error Requires Automatic Vacatur of Guilty Plea

The U.S. Court of Appeals for the Fourth Circuit held that the district court’s failure to give a defendant notice that he belonged to a class of persons prohibited from possessing a firearm during his plea colloquy constitutes a structural error that requires his guilty plea to be vacated. It is the first Court of Appeals to address the question of whether this error is a structural error—denial of due process—that mandates the vacatur of the guilty plea and conviction.

The Court’s ruling came in an appeal brought by Michael Andrew Gary. He was arrested in South Carolina on January 17, 2017, following a traffic stop for driving on a suspended license. An inventory of the vehicle uncovered a loaded firearm and nine grams of marijuana. Gary admitted to possessing both items and was charged under state law with possession of a firearm by a convicted felon.

Gary again ran afoul of the law in June 16, 2017, after two officers patrolling a motel parking lot smelled marijuana. As they approached, Gary had a joint in his lap. A consensual search uncovered large amounts of cash on Gary and his companion, a digital scale, a stolen ...

California Federal Court Rejects Plea Agreement’s Waiver of Compassionate Release Provision

The U.S. District Court for the Northern District of California rejected the plea agreement that required the defendant to waive his right to seek compassionate relief unless he exhausted all administrative rights of appeal for the Bureau of Prisons’ (“BOP”) failure to bring such a motion on his behalf.

The Court’s May 11, 2020, order began by asking, “Must a term of imprisonment be set in stone, no matter what happens after it is imposed?” It then posed a series of questions about what should occur if an “unforeseen tragedy,” such as “chronic illness, disability, or aging makes it impossible for the defendant to care for him or herself while incarcerated, terminal illness, and family tragedies that render the defendant the sole caretaker for an incapacitated partner or minor children.”

“What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail?” the Court asked. It found that “Congress has provided one set of answers to these questions in the First Step Act of 2019,” but the “United States attorney’s office has very different answers in this case, for this defendant.”

At issue was the plea agreement offered ...

Florida Supreme Court Abandons Circumstantial Evidence Review Standard

by David M. Reutter

In affirming the conviction and death sentence of Sean Alonzo Bush, the Supreme Court of Florida announced it is abandoning the different standard for reviewing wholly circumstantial evidence cases.

Bush was convicted of the brutal attack on his estranged wife Nicole Bush. The couple was separated when Bush allegedly disarmed the alarm panel to Nicole’s home in the early morning hours of May 31, 2011. The medical examiner testified that Nicole was shot six times with a .22-caliber weapon, five times in the head and once in the elbow. She also sustained blunt force injuries from a baseball bat. At least three of the blows were to the top of her head, splitting her skull and bruising her brain. She also was stabbed in the left breast and right arm. She was able to call for help but died hours later from her injuries at the hospital.

Bush was arrested in September 2011. A jury returned a verdict on August 2, 2017, finding him guilty of first-degree premeditated murder, felony murder, and burglary of a dwelling with an assault. It unanimously recommended the death penalty, and the trial court imposed a death sentence for the murder ...

Iowa Supreme Court Vacates Guilty Plea for Lack of Evidence and Ineffective Assistance of Counsel

The Supreme Court of Iowa ruled there was no factual basis to support a defendant’s guilty plea to possessing a tool with the intent to use in the unlawful removal of a theft detection device. The Court further ruled that defense counsel was ineffective for allowing the defendant to plead guilty to the charge.

Before the Court was the appeal of Charles Edward Ross. He was arrested, along with co-defendant Calvin Lacey, in the early morning hours of September 24, 2018. Ross used bolt cutters to cut the padlock off a steel cable that was wrapped around a riding lawn mower that was on display at a local farm-supply store onto a rented truck. An employee who was arriving for work saw them and called police.

They fled but were apprehended down the road. A search of the vehicle resulted in discovery of bolt cutters, the mower, a ski mask, and methamphetamine. Ross was charged with theft in the second degree, possession of a “tool, instrument or device to remove a theft detection device” under Iowa Code § 714.7B(3), and possession of methamphetamine.

A plea agreement was reached on April 1, 2019. It provided for the ...

First Circuit: Home Search Affidavit Failed to Establish Nexus of Crime and Evidence

The U.S. Court of Appeals for the First Circuit affirmed the suppression of evidence seized from a suspected drug dealer’s home as fruit of the poisonous tree.

Jamal Roman was alleged in a search warrant application submitted by DEA Special Agent Scott Smith to be “a known cocaine trafficker” who “oversaw distribution of narcotics” for Javier Gonzalez. That suspicion was the result of the cooperation of a confidential informant (“CI”) who in January 2014 was caught with three kilograms of cocaine. The CI subsequently agreed to cooperate with law enforcement, who then initiated surveillance of Roman and Gonzalez.

Two months later, Smith drafted an affidavit to support a search warrant application of seven locations. The search warrants were granted on March 21, 2014, and the searches conducted four days later. Roman was indicted on March 24, 2016, by a grand jury on one count of conspiracy to distribute cocaine and heroin and a count of distribution and possession of cocaine.

He moved to suppress the fruits of the search of his person, residence, and business. The district court found the affidavit supporting the searches “contained material misrepresentations and omissions made with reckless disregard for the truth and ...

Former Florida Deputy Jailed for Fabricating Drug Evidence

During his tenure as a deputy from May 2017 to January 2018, Steven O’Leary made 80 drug-related arrests. An arrest warrant says O’Leary arrested 26 people accused of having drugs on them who either did not have illegal drugs or who did not have the actual amount or type of drugs he said they did.

Matthew Crull was arrested by O’Leary on December 5, 2018. Crull was asleep in a used van he had recently purchased when O’Leary approached him and made a search. During that search, O’Leary pulled a plastic bag cinched with a wire tie from the inside of the driver’s door. O’Leary field-tested the substance and determined it was 92 grams of heroin.

That landed Crull in jail on drug trafficking charges, which carried a possible 25-year prison sentence. A lab test determined the substance was Tide detergent. Officials soon determined that O’Leary made numerous arrests based on field tests he said were drugs but were later determined to be legal substances. ...

Hawaii Lawmakers Propose Transparency from Prosecutors

Prosecutors are the “most powerful actors in the criminal justice system” proclaims Hawaii House Bill 2749. That bill would follow the lead of Florida, Colorado, and Arizona in increasing transparency into court proceedings.

A Texas A&M Law Review article highlighted the need to increase transparency in plea bargaining. (See July 2019 CLN, p.41) This bill does that and more. It would require a prosecutor’s office to collect and publish data about a defendant’s race, gender, disability status, where they were arrested, whether diversion was offered, bail or bond information, pleas offered, and substance abuse screening.

In all, the bill requires 11 data points to be collected and publicized online by a newly created criminal justice research institute. It also requires the governor to establish a prosecutorial transparency advisory board.

“The intent of the bill is generally to bring more transparency to the process in prosecutor’s offices to make sure the public can have faith and confidence that the right people are being prosecuted,” said House Judiciary Committee Chair Chris Lee.

The bill is not popular with prosecutors. Maui County Prosecutor Son Guzman said it was in “strong opposition” to it. “This bill creates an unfunded ...

Ninth Circuit: Federal Sentencing Court Must Hear Defendant Before Determining If Acceptance of Responsibility Reduction Applies

by David Reutter

The U.S. Court of Appeals for the Ninth Circuit held that a “sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Sentencing Guidelines.” The Court concluded the misapprehension of ...

Massachusetts Supreme Court Suppresses Evidence Obtained After Miranda Warnings Translated into Spanish Deemed Incapable of Conveying Meaningful Advice

by David Reutter

The Supreme Judicial Court of Massachusetts affirmed the suppression of custodial statements where the translation of Miranda warnings into Spanish was inadequate to apprise the defendant of his rights. The Court also reversed the denial of the suppression of evidence taken from the defendant’s cellphone because the ...



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