by Douglas Ankney

In a case of first impression, the Massachusetts Supreme Judicial Court affirmed a trial court’s exclusion of expert testimony regarding an iPhone’s frequent location history data (“FLH”) evidence.

Victor Arrington was charged with first degree murder and other offenses related to the home invasion and killing of Richard Long at Long’s residence on Harvard Street in the Dorchester section of Boston. The Commonwealth moved in limine to admit the FLH data from Arrington’s iPhone and corresponding expert testimony explaining that the FLH data placed the iPhone “within a 143-foot radius” of the crime scene at the time of the crime.

The trial court conducted a series of Daubert-Lanigan hearings (from Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994)), to evaluate the reliability of the proposed expert testimony about the FLH data. The Commonwealth’s forensic analyst testified that:

(1) he did not have access to the proprietary algorithm that generated the FLH data;

(2) he performed a series of tests with an iPhone similar to Arrington’s but not identical and that there were “likely differences” between the algorithms used in the two phones that ...

by Douglas Ankney

The Department of Homeland Security (“DHS”) has an impressive cache of surveillance technology that includes, inter alia, automated license plate readers (“ALPR”) and cell-site simulators (“CSS”). The latest tracking and surveillance revelation is that DHS and other law enforcement agencies have been using TraffiCatch since 2019.

Deployed in Texas, TraffiCatch detects WiFi and Bluetooth signals in moving cars for tracking purposes. Bluetooth devices consistently broadcast a Bluetooth Device Address that is either a public address or a random address. Over the lifetime of the device, public addresses do not change and are the easiest to track.

But more common are the random addresses that have multiple levels of privacy. These addresses change regularly. Unless a Bluetooth device with a random address has paired with a device that has a public address, it is hard to track. However, Jenoptik, the manufacturer of TraffiCatch, reports that data derived from Bluetooth is combined with ALPR, permitting law enforcement to track individuals who switch vehicles and change license plates.

Immigration and Customs Enforcement (“ICE”) is already notoriously known for using CSS in violation of the law. CSS are devices that masquerade as legitimate cellphone towers, prompting cellphones within a certain ...

by Douglas Ankney

The Court of Appeal of California, Fourth Appellate District, held that “if a defendant provides statistical evidence showing a racial disparity in the charging of non-minority defendants and African-American defendants, and provides evidence of non-minority defendants who engage in similar conduct and are similarly situated but were charged with lesser crimes than the charged African-American defendant, this is sufficient to show there was more than a mere possibility that a violation of [California Penal Code § 745(a)] has occurred. As such, a defendant has met his burden of establishing a prima facie case.” (Note: All statutory references are to the California Penal Code.)

Michael Earl Mosby, III, was charged by the Riverside County District Attorney’s Office (“DA”) with murder in connection with the drive-by shooting of Darryl King-Divens and a gun enhancement of discharging a firearm causing great bodily injury or death, along with three special circumstances – including having committed multiple murders. (Mosby had been involved in three additional shootings that resulted in two murders.) On March 15, 2019, the DA notified Mosby of the People’s intent to seek the death penalty.

In July 2022, defense counsel filed a motion alleging that the DA’s decision ...

by Douglas Ankney

Australian researchers at Flinders University have employed a promising new technique to collect and record forensic DNA evidence from crime scenes. A new study appearing in Electrophoresis focused on the DNA retrieved from air conditioning (“AC”) units that circulate a room’s air, including different types of filters at alternate periods.

While a crime scene may be wiped clean of fingerprints, Mariya Goray, senior lecturer in forensic science at Flinders and author of the study, said “it is very unlikely that an average offender, even with forensic awareness, could totally prevent their DNA from being released into the environment.

Samples of Environmental DNA (“eDNA”) from AC units in four offices and four houses were collected at different times following cleaning. Samples were also collected from the air. The eDNA collected on the surfaces of AC units tended to be from previous room occupants while eDNA detected in the air represented more recent occupants. Goray said “[w]e now know that eDNA shed from sources, such as skin or saliva, can be detected in the environment, including soil, ice, air and water. We may be able to use this evidence to prove if someone has been in the room, ...

by Douglas Ankney

The Supreme Court of Indiana clarified the framework for determining when a court may apply a cash bail toward payment of public-defender costs and toward payment of fines, costs, and fees.

Tailar L. Spells was arrested on charges related to her altercation with Officer Lynnford Parker of the Indianapolis Metropolitan Police Department. The trial court set a $250 cash bond, which was deposited in full by a third party – Diane Rolle. Both Spells and Rolle signed a cash-bond agreement pursuant to Indiana Code § 35-33-8-3.2 that permitted the trial court, “upon full satisfaction of all bond conditions, to ‘retain all or part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.’” (Note: All further statutory references are to the Indiana Code.)

The trial court subsequently appointed a public defender and imposed a $100 supplemental public-defender fee. Spells was ultimately convicted at a bench trial of felony battery on Parker. Pertinent to this review, the trial court imposed probation, a $20 fine, and $185 in various fees and costs with the probation terminating upon, inter ...

by Douglas Ankney

Due to the monumental increase in the number of appeals of bond decisions, the Illinois Supreme Court adopted new appellate rules recommended by a five-person taskforce (“Taskforce”). The Pretrial Fairness Act (“PFA”), implemented in April of 2023, allows pretrial detainees to appeal district courts’ decisions regarding conditions for release. Under the PFA, whether a person remains detained prior to trial is based on, inter alia, whether the person is a flight risk, a danger to the community, and the charges faced by the person. Each of these determinations by the judge may now be appealed.

Prior to enactment of the PFA, a bond was set by the judge. Infrequently, about 17 times each year according to the Taskforce, an appeal of the bond decision was sought. But under the PFA, the number of appeals was projected to total 4,557 annually. And in the five months following the PFA’s enactment, about 1,900 appeals have already been filed.

“That’s just too much of a change in too short of a time,” said Justice Eugene Doherty of the Fourth District Appellate Court and Taskforce member. Among the Taskforce’s recommendations adopted by the Supreme Court are:

* Issues with the ...

by Douglas Ankney

Bias influencing medical examiners’ manner of death determinations is sending innocent people to prison and exonerating guilty cops. In Mississippi, Rankin County Deputy Hunter Elward pleaded guilty in 2023 to federal charges related to his role in the horrific torture of two Black men by a gang of deputies calling itself the “Goon Squad.” The deputies broke into the men’s home, tortured and sexually humiliated them, and fired a gun inside the mouth of one of the men, leaving him with permanent disfiguring injuries. And in 2021, Elward was one of two deputies who witnesses saw kneeling on 29-year-old Damien Cameron for more than 10 minutes. Cameron died from the encounter. His face was swollen and bloodied, and there was bleeding in his neck.

Nevertheless, State Medical Examiner Staci Turner determined Cameron’s manner of death to be “undetermined.” But in the aftermath of the torture cases, Cameron’s manner of death was reviewed by three separate medical examiners. Each of them concluded that Turner erred in classifying Cameron’s manner of death as undetermined – each concluding that Cameron’s death was clearly a homicide. But because Turner had failed to classify the death as homicide, there was no ...

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Illinois erred in conflating the scopes of the no-firearms condition of the “safety valve” of 18 U.S.C. § 3553(f) and the firearms enhancement of U.S. Sentencing Guidelines (“U.S.S.G.”) ...

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s first-degree assault statute, Md. Code, Art. 27 § 12A -1, is indivisible, and a conviction thereunder is not a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

In 2008, Garfield ...

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that John Miguel Swan’s guilty plea was not knowing and voluntary because “his plea counsel materially misrepresented his right to an impartial jury selected through racially nondiscriminatory means.”

While Swan was being arrested on a domestic violence ...