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The Habeas Citebook: Prosecutorial Misconduct

Articles by Jayson Hawkins

ATF: What Is a Gun?

Making a decision about what is or is not a “firearm” under the law would seem to be a fairly straightforward process, but recent controversy about the regulations used by the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosive (“ATF”) has shown that the definition of a gun is not nearly as clear as it seems.

The legal definition of a firearm is laid out in the 1968 Gun Control Act. That law’s definition includes not only what most people would think of as a gun but also “the frame or receiver of any such weapon.” 18 U.S.C. § 922(a)(3). Defining what a receiver or frame is, however, was left up to regulating agencies – in this case, the ATF. The ATF defined a receiver as having three elements: hammer, bolt or breech-lock, and firing mechanism. This “receiver,” even without the rest of the weapon, is legally considered a firearm in itself.

The problem with this definition, according to former ATF agent and firearms expert Dan O’Kelly, is that roughly 60 percent of the guns in America do not have a single part that fits this description. As a practical matter, this means the ATF should not ...

FBI’s Long History of Squelching Political Dissent Under the Guise of National Security

by Jayson Hawkins

For nearly a century, one of the most important duties of the FBI has been to act as the primary counterterrorism force on American soil. Unfortunately, throughout that time, the FBI has shown a troubling tendency to surveil dissidents and view challenges to the status quo as national security threats. This tendency began with the young Bureau’s first large-scale raids and has continued, according to a recently released report, up to today.

The FBI began as the U.S. Department of Justice’s Bureau of Investigation in 1908. Founded by Theodore Roosevelt despite congressional resistance, this early Bureau was intended to be the leading edge of a national response to anarchists and violent unionists. After successfully silencing opposition to World War I, the Bureau began raids in 1919 aimed at what it called “subversives and Communists” but which really targeted Eastern European immigrants, Italians, and labor organizers, according to Alice Speri in her article, “The FBI Has a Long History of Treating Political Dissent as Terrorism.”

The so-called Palmer Raids (after then-Attorney General Mitchell Palmer) lasted months and led to the arrests of over 10,000 people in a dozen cities, though none of those arrested were even tied to ...

No Consequences for Prosecutors’ Bad Behavior

It is not unheard of that the quest for justice occasionally ends in a mistrial.

That the defendant would then be retried six times for the same crime, however, is less of a misfire than it is a miscarriage of justice—especially when four of the verdicts were thrown out due to prosecutorial misconduct.

Curtis Flowers’ legal purgatory has stretched into its third decade as he awaits a seventh trial for allegedly murdering four people in 1996.

He has never wavered from maintaining his innocence, yet Doug Evans, the district attorney now serving his eighth term for the Fifth Circuit Court district in Mississippi, has consistently resorted to illicit tactics to obtain guilty verdicts against Flowers. The U.S. Supreme Court overturned the most recent one in June 2019 after court records showed Evans attacked the credibility of witnesses without reason, introduced inadmissible evidence, and used race to disqualify potential jurors. Despite Mississippi’s large Black population, Flowers’ juries routinely lacked any fellow Blacks.

Evans’ flagrant violations of courtroom procedure not only were overlooked by the voters who returned him to office last year, but he also managed to avoid any public discipline for his actions. While people in other ...

‘No-Knock Raids’ an Increasing Danger to Public Safety

Julian Betton was in his home minding his own business when the police crashed through his front door. The cops entered without knocking or identifying themselves as law enforcement, and Betton reacted as any citizen would to masked individuals shouting threats and brandishing weapons: He confronted the armed intruders with a gun of his own. The police shot him nine times, paralyzing him from the waist down and severely damaging his internal organs.

Betton was a victim of an aggressive form of warrant service called “dynamic entry,” commonly known as “no-knock” warrants. Police officers argue that no-knock warrants are necessary to ensure their safety and to prevent suspects from destroying evidence. Yet there is no evidence to suggest that serving warrants this way is safer for either law enforcement or citizens. In fact, when police masquerade as violent home invaders, they often provoke an armed response that results in serious injury, and even death in some cases, for everyone involved.

With no-knock raids, police departments have taken a page out of the military’s playbook. In recent years, the U.S. Department of Defense’s 1033 program has promoted the militarization of law enforcement by providing cops with surplus military ...

Prosecutors Overrepresented Among Federal Judges

Imagine your alma mater was about to play its rival in the season’s biggest game. Imagine also that, the day before the game, it was revealed that the majority of the referees were alumni of the other school. Even though these individuals were sworn by their profession to be impartial on the field, it would be hard not to believe that their personal experiences might shade their calls, thus putting your side at a disadvantage. Such a scenario would rightly be considered unfair and objectionable, yet it is precisely the situation that many people face in federal court.

A recent study by the Cato Institute found that the odds are almost 50 percent that those filing civil rights or criminal cases in federal court will come before judges whose previous career experience included acting as courtroom advocates on behalf of the government. The chances of landing before judges who opposed the government were a slim six percent.

It has long been a truism in the legal field that the easiest route to obtaining a position as a federal judge was to start by serving as a prosecutor. The Cato study, however, was the first to generate actual ...

FBI ‘Assessing’ Black Americans

Unlike sanctioned investigations, assessments do not require any evidence of wrongdoing or threat to be implemented, nor are they subject to other limitations. Agents are allowed to mislead interviewees and do not have to identify themselves as federal officials. They also can select their targets based on religion, ethnicity, and other factors normally protected by the First Amendment as long as these are not the only criteria.

Numerous Freedom of Information requests submitted by civil rights activists have exposed hundreds of FBI documents related to assessing African Americans, yet these represent only a small fraction of the total. Despite calls for transparency from lawmakers, the pages that had been released were heavily redacted. Often entire pages were blacked out, and any information that might reveal the subject’s identity or location had been removed.

What could be ascertained from the most recent ...

Fingerprint Analysis: High Stakes, Low Qualifications

Forensic science was long considered a foolproof means of analyzing evidence to determine the identity of individuals involved in a crime or their methods of committing it. If the people in the lab applied their technical expertise to a case and the results pointed toward a certain suspect, a guilty verdict was almost assured. After all, what jury would argue with the objective standards of science?

A 2009 National Academy of Sciences report cast old assumptions about the field of forensics into serious doubt. The study found that all the pattern-matching disciplines, where evidence from a crime scene is compared to a pattern connected to a suspect, are actually very subjective, meaning that experts examining the same piece of evidence can—and often do—reach conflicting conclusions. It went on to say that, except for DNA analysis, most disciplines of forensics had no solid scientific basis.

Some analyses, such as matching bite-marks and handwriting, had already been criticized for uneven results, but perhaps the biggest surprise was that friction ridge, or fingerprint, comparisons lacked objective standards as well. This particular field revolves around the common perception that no two individual’s prints are identical, but that has never been proven. ...

Wrongfully Convicted NY Man Freed After 24 Years

There were many times Pablo Fernandez could have given up. Yet after spending over half his life behind bars, he never wavered in maintaining his innocence.

‘‘It was so difficult for me to be in prison for so many years when I knew the case against me was totally fabricated,” he said.

Fernandez, now 47, was only 22 at the time he was arrested and charged with a murder-for-hire killing of a gang member in Harlem. He was convicted on the word of several witnesses in 1996 and sentenced to 25-to-life.

Fernandez stated his family and attorneys never lost faith in his innocence, and their support was crucial as the appeals process dragged on for years into decades. Cracks began to appear in the prosecution’s case as one witness after another recanted their testimony and other information came to light that had been withheld at Fernandez’s trial.

In denying their original testimony, three eyewitnesses said they had been instructed by Albert Melino, a dirty NYPD cop, to finger Fernandez as the murderer. This ran counter to their first descriptions of the gunman as being middle-aged, light-skinned, with long, graying hair.

Fernandez was 20 and dark-skinned with his ...

Warrant Gives Police Access to DNA Database

by Jayson Hawkins 

Advances in DNA technology over recent years have enabled people to discover genetic predispositions, reconstruct family trees, and track down lost relatives. Nearly 30 million users have uploaded their profiles to DNA sites in hopes of reconnecting with their past or catching a glimpse of future ...

The Faulty Science of Breathalyzers

by Jayson Hawkins 

The forensic sciences, once believed to offer infallible evidence against a wide spectrum of crimes, have in many instances been exposed as little more than smoke and mirrors. 

To the growing list of faulty, misleading, or disproven methods can be added alcohol breath-testing.

A recent ...



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