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Prison Profiteers

Articles by Douglas Ankney

Seventh Circuit: Defendant’s Statement Given to Pretrial Services Can’t Be Admitted to Impeach Witness at Trial

In a case of first impression, the U.S. Court of Appeals for the Seventh Circuit ruled that it is impermissible to admit a statement made by the defendant to Pretrial Services for the purpose of impeaching the testimony of a witness at trial.

In August 2014, Detective Robert Erdely recorded the Internet Protocol (“IP”) address of a computer transmitting child pornography to him over the internet. The sender was using a rare software program called “Tixati” to access the “BitTorrent” network and send the child pornography in torrent file 817e. (BitTorrent allows users to combine multiple files into one electronic package called a “torrent file.”) The IP address corresponded to an account in the name of Eva Chaparro (hereinafter “Eva” to avoid confusion) at a home in McHenry, Illinois.

Based on a tip from Erdely, the McHenry County Sheriff’s Office executed a search warrant on the home on December 2, 2014.

When police arrived at the house, only three people were inside: Eva, her husband Hector Chaparro, and Eddie Ramos. Officers found three computers, including a Compaq-brand desktop recovered from an upstairs bedroom that Eva said was where her grandson Michael Chaparro slept. An on-site forensic examination ...

California Court of Appeal Explains Procedural Requirements for Vacating Felony-Murder Conviction Via Section 1170.95 Petition

The Court of Appeal of California, Sixth Appellate District has explained the procedural requirements for adjudication of petitions filed pursuant to Penal Code § 1170.95.

In the middle of the night of June 14, 1991, John Lewis Drayton and three other men entered the Wards’ home with the intent of robbing a safe. Drayton and two of the other men were armed. Mr. and Mrs. Ward were awakened in their bedroom. One of the men then brought the Wards’ teenage daughter into the room, placed a firearm in her vagina, and threatened to rape her if Mr. Ward did not reveal the location of the safe. Drayton told the man not to rape the girl. Mr. Ward and two of the men went into a closet where the safe was located. Drayton held Mrs. Ward to the floor with his foot in the middle of her back, and he struck Mrs. Ward with his gun, grazing her head but not injuring her.

A struggle ensued inside the closet, and one of the other men shot and killed Mr. Ward. Drayton told Mrs. Ward to wait 15 minutes before doing anything, and then all four men left the ...

Police Violence Detrimental to Public Health

by Douglas Ankney

The 25,000-member American Public Health Association (“APHA”) issued a statement addressing police violence that begins: “Law enforcement violence is a critical public health issue.” And in what could be termed a “typical case in support,” Joseph Goldstein of The New York Times reported the tragic stories of Khiel Coppin and Na’im Owens — two brothers shot and killed by New York Police Department (“NYPD”) officers.

The brothers lived in the Bedford-Stuyvesant neighborhood of Brooklyn. Their mother, Denise Elliott-Ownes, was a teacher from Trinidad and Tobago who had moved to New York to pursue her dream of becoming a lawyer. Khiel was killed in 2007 because officers reportedly mistook a hairbrush inside his sweatshirt for a handgun. A few months later, Na’im turned 16 and became a regular “target” for cops.

This was the era of stop-and-frisk. Beginning in 2008, NYPD officers stopped Na’im regularly.

That year, according to Goldstein, police recorded 540,000 stops. By 2011, there were over 685,000 stops annually.

Former Mayor Mike Bloomberg claimed stop-and-frisk was a successful measure addressing gun violence. But the facts reveal guns were recovered in fewer than 0.2 percent of the stops. Stop-and-frisk was a pretext simply to routinely stop, ...

New Hampshire Supreme Court: Police Violated Miranda in Obtaining First Statement, and State Failed to Prove Second Statement Was Voluntary

The Supreme Court of New Hampshire affirmed a superior court’s decision suppressing the initial incriminating statements made by Dominic Carrier because police violated the protections of Miranda v. Arizona, 384 U.S. 436 (1966). The Court also affirmed the suppression of additional statements because the State failed to prove those statements were voluntarily made.

A 13-year-old girl, her father, Carrier, and Carrier’s mother all shared an apartment. After Carrier left for work, the girl told her father that Carrier had entered her bedroom and touched her vagina. The father called police. Officer Kekejian of the Nashua Police Department arrived at the apartment, and the father related the girl’s account to Kekejian.

Kekejian was dressed in his uniform with his gun and badge visible. Carrier returned home and entered the apartment. Kekejian immediately ordered Carrier outside and followed him onto the porch. Kekejian blocked the door to the apartment to prevent Carrier from reentering, telling Carrier the police were “investigating a matter,” and the apartment was “being held as a scene.” Kekejian pat-frisked Carrier. When Carrier attempted to use his cellphone, Kekejian took it without explanation and did not return it. Kekejian asked Carrier about entering the girl’s ...

5-Year Study Shows Police Stop Black Drivers Less Often at Night When ‘Veil of Darkness’ Obscures Race

In the largest-ever study of racial profiling by police during traffic stops, Stanford University has shown that Black people are much less likely to be stopped after sunset when “a veil of darkness” masks their race. The five-year study analyzed 95 million traffic-stop records that had been filed by officers from 21 state patrol agencies and 35 municipal police forces from 2011 to 2018.

The study was a collaboration between Stanford’s Cheryl Phillips (a journalism lecturer whose students obtained the raw data through public records requests), Sharad Goel (a professor of management science and engineering whose computer science team organized and analyzed the data), and Ravi Shroff (a professor of applied statistics at New York University who worked with Goel).

The team spent years culling through the data, eliminating records that were incomplete or from the wrong time periods (focusing on 7:00 p.m. local time when the sky is lighter or darker depending on daylight savings time), to create the 95 million-record database. The dataset provided a statistically valid sample with two important variables: (1) the race of the driver being stopped and (2) the darkness of the sky. The analysis left no doubt that the darker ...

Marijuana Possession in Virginia Remains Illegal But Is Decriminalized

On May 21, 2020, the Commonwealth of Virginia became the 16th state to decriminalize possession of marijuana when Governor Ralph Northam signed Senate Bill 2 and House Bill 972.

The law, which becomes effective July 1, 2020, creates a civil penalty of no more than $25 for possession of up to an ounce of cannabis, with no jail time. A violation will be charged by a summons.

There will be no court costs. The violation won’t be recorded in the person’s criminal history, and no charges or judgments will be reported to the state’s Central Criminal Records Exchange. But if the violation occurs while the person is driving, it will go on the person’s driving record and be reported to the Department of Motor Vehicles. Additionally, past records related to arrests, charges, and convictions for marijuana possession will be sealed “except in certain circumstances.” Employers and educational institutions will be prohibited from requiring individuals to disclose those records.

The new law is the latest in progressive action taken by state Democrats since they took control of the Governor’s Office, Senate, and House of Delegates for the first time in more than 20 years. “We applaud the legislature ...

Iowa Supreme Court Orders Dismissal of Charges that State Brought in Breach of Plea Agreement

The Supreme Court of Iowa ordered the dismissal of charges after determining the State breached a plea agreement wherein the State had promised the charges would not be brought.
A fire on January 26, 2018, burned a pole barn in Powshiek County. Poweshiek County Sheriff’s Deputy Steve Kivi believed the fire was intentionally started and focused an investigation on Montezuma firefighter Chance Ryan Beres as the arsonist. Shortly thereafter, there were additional unexplained fires, including an April 12 fire burning a grass field and a shed. And an April 29 fire burning grass that was followed by another fire on April 30 at the same location that burned an abandoned farmhouse.

Investigators obtained a warrant to install a GPS tracking device on Beres’ vehicle. An abandoned barn was burned in a subsequent fire on May 27, 2018, and the GPS tracking data showed Beres was at the scene of the fire shortly before the fire started. Beres was arrested for starting that fire.
Beres admitted to Kivi that he had started the May 27 barn fire and the April 12 grass fire. He denied starting the other three fires. Investigators later obtained cellphone records and cell-site location ...

COVID-19 Causing Some Pretrial Detainees to Spend More Time in Jail

In New York, persons accused of felonies are brought before a judge who decides whether to impose bail. Then prosecutors must present the evidence before a grand jury within six days and obtain an indictment. If the prosecutor fails in this process, the person can plead with the judge to go free. But Governor Andrew Cuomo suspended the six-day deadline in his March 22, 2020, stay-at-home order. New York court officials deemed grand jury hearings as non-essential while the COVID-19 outbreak is underway.

Appearing before a judge to set bail is relatively easy. It can be done via a video and a TV monitor. But convening a grand jury requires assembling a large number of people. And suspending the six-day deadline has resulted in those unable to make bail sitting in jail for longer periods. Only about one in four people charged with a felony in New York are indicted by a grand jury. Prosecutors often drop the charges within the six-day window if victims or witnesses refuse to testify or if the case appears too weak to lead to a conviction. With the suspension of grand juries, “people who could have their cases resolved, they are ...

NY Court of Appeals: Right to Review Suppression Decision When Decision Relates Solely to a Count Satisfied by Plea but Isn’t Count to Which Defendant Pled

The Court of Appeals of New York held that N.Y. Crim. Proc. Law (“CPL”) 710.70(2) grants a defendant the right to appellate review of a decision on a suppression motion when the decision relates solely to a count that was satisfied by a plea of guilty but was not the count to which the defendant had pleaded guilty.

David M. Holz was indicted on two counts of second-degree burglary. Count One involved the theft of a laptop computer, and Count Two related to stolen jewelry. Holz filed a motion to suppress the jewelry, which the trial court denied. Because Holz had prior convictions, he faced a maximum prison term of 30 years. He entered a plea of guilty to the laptop theft in Count One in satisfaction of the entire indictment in exchange for a sentence of six years of imprisonment, followed by five years of post-release supervision.

Holz appealed, contending that the trial court erred in denying his motion to suppress the jewelry. The Appellate Division affirmed without reaching the merits, holding that “the judgment of conviction on appeal here did not ensue from the denial of the motion to suppress and the latter is, therefore, ...

Fifth Circuit Clarifies How ‘Pronouncement Requirement’ Applies to Supervision Conditions

The U.S. Court of Appeals for the Fifth Circuit clarified how the requirement that a district court pronounce its sentence in the presence of the defendant applies to conditions of supervised release.

After Rosie, Walter, and Anita Diggles were convicted by a jury of fraud in connection with their receipt of hurricane-relief funds, the U.S. District Court for the Eastern District of Texas imposed conditions of supervised release in addition to terms of imprisonment. The court confirmed that the Diggles had reviewed the Presentence Report (“PSR”) with their attorneys and then stated: “Looking at the Revised Presentence Investigation Report, those conditions are found [under the heading] ‘Supervision Conditions Recommendation.’ Those are no longer just a recommendation; those are the conditions and special instructions that I have adopted.”

Under the heading referred to by the district court were two subheadings labeled “Mandatory Conditions” and “Special Conditions.” The Special Conditions read, in part:

“You must pay any financial penalty that is imposed by the judgment.

“You must provide the probation officer with access to requested financial information....

“You must not incur new credit charges or open additional lines of credit....

“You must not participate in any form of gambling....” ...

 

 

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