by Matt Clarke

Recently published information shows that plainclothes officers, who make up about 6 percent of the New York Police Department (“NYPD”), are involved in 31 percent of New York City’s fatal police shootings. This has led critics to question the behavior of NYPD’s plainclothes officers, who often act like gang thugs to “blend in” with the neighborhoods they stake out.

A recent analysis by The Intercept used data from the Fatal Encounters project to show that a relatively small group, plainclothes officers, were involved in nearly one-third of New York City’s fatal police shootings since 2000. The 174 fatal shootings included 54 involving only plainclothes officers, 41 involving only uniformed police officers, 11 involving both, and 68 in which it is unknown whether the involved officers were plainclothes or uniformed.

The analysis was complicated by the fact that the NYPD refers to both officers working undercover and those working out-of-uniform as “plainclothes officers.” Further, the NYPD does not release comprehensive information on police shooting incidents.

The NYPD also does not disclose the number of its approximately 20,000 officers who work in its plainclothes units. The Intercept used information provided by retired NYPD sergeant and John Jay ...

by Matt Clarke

A study by researchers from the University of Texas School of Law Capital Punishment Center published in the Houston Law Review found that in 96 percent of post-conviction proceedings in cases where the defendant received the death penalty, Harris County judges adopted the prosecutors’ proposed findings of fact verbatim. In the overwhelming majority of the cases, Harris County judges signed the prosecutors’ proposed documents without even removing the word “proposed” from the heading.

The study examined 21,275 individual findings of fact proposed by the prosecutors. It found that 96 percent of the time the judicial findings of fact were verbatim, word-for-word what the prosecutors had written.

Two related state post-convictions practices that “undermine the accuracy and fairness of the death penalty” were identified by the study’s authors: Jordan M. Steiker, Capital Punishment Center director; Judge Robert M. Parker, chair in law; clinical professor James W. Marcus, the center’s co-director; and clinical fellow Thea J. Posel. The practices identified are “the reluctance of the state trial courts to conduct evidentiary hearings to resolve contested factual issues, and the wholesale adoption of proposed state fact-findings instead of independent state court decision-making.”

According to the study, the “inadequate ...

by Matt Clarke

On May 21, 2018, the Supreme Court of Hawaii held that a prosecutor’s improper closing argument stating that defense counsel tried to get the complaining witness to commit perjury required that a conviction be vacated.

A jury convicted Brian Underwood of second-degree unlawful imprisonment and abuse of family or household members. He was sentenced to two years of probation following seven days of incarceration.

The convictions resulted from an incident when he and the complaining witness (“CW”) were ending a live-in relationship. CW testified that, when she and her sister came to Underwood’s residence to collect her property, the sister was locked out of the home after taking out a box of CW’s property.

While her sister was locked out, CW testified that Underwood came to the laundry room, where she was looking for some of her clothes. He was allegedly carrying a pillow case that he dropped, revealing a gun. She told police that Underwood had threatened her with the gun and refused to let her leave, but she was unclear about this during her trial testimony.

The sister testified that, after she was locked out of the home, she pounded on the door, rang the ...

by Matt Clarke

According to techdirt.com, scientists at the University of Surrey in the United Kingdom have developed a new forensic technique that, in as little as 30 seconds, analyzes sweat found along the ridges of fingerprints to determine whether a person has used cocaine within the previous 24 hours.

A research paper, recently published in Clinical Chemistry, said the assay detected traces of cocaine even after the subjects washed their hands with soap and water.

The researchers used 160 fingerprint samples collected from 16 people who admitted using cocaine within the past 24 hours when checking into a drug treatment program. The presence of cocaine was verified by testing saliva.

Additionally, there were 80 fingerprint samples (presumably from eight people) of nonusers. The report claimed the test correctly identified 99 percent of the users and gave false positives for only 2.5 percent of the nonusers.

Presumably, what the scientists are saying is that only one or two user fingerprints out of 160 samples showed up as nonuser and only two out of 80 nonuser fingerprints showed up as user.

Although that is an impressive achievement, it still could misidentify up to 25 percent of nonusers as users ...

by Matt Clarke

On April 13, 2018, the Supreme Court of Kansas held that, absent a finding by a trial court that a defendant used a deadly weapon in a person felony, the trial court could not require the defendant to register as a violent offender pursuant to the Kansas Offender Registration Act (“KORA”), K.S.A. 22-4901, et seq. It further held that the absence of such a finding was not a sentencing error that could be corrected on remand. It was not an error at all.

Aided by Samuel D. Shirer of the Kansas Appellate Defender Office, state prisoner Donald Gilkes appealed his obligation to register as an offender under the KORA. He had been convicted by a jury of aggravated assault related to his using a lock-blade knife to commit an assault. The charging instrument and jury instructions required the jury to find that he used a deadly weapon in order to convict him. Before pronouncing sentence, the trial judge told Gilkes that the offense requires registration.

In its Kansas Sentencing Guidelines Journal Entry of Judgment for this case, the trial court marked “no” next to the question: “Did offender, as determined by the court, commit the ...

by Matt Clarke

March 2018 should have been the happiest month of his life. After over two decades of wrongful imprisonment, the Cook County State’s Attorney agreed to drop murder charges against Illinois state prisoner Ricardo Rodriguez. He should have walked out of prison a free and exonerated man. Instead, on March 28, 2018, Immigration and Customs Enforcement (“ICE”) took Rodriguez into custody for possible deportation proceedings.

“It would be a very big injustice for them to do that to not only my mother, but my family who have tried so hard to prove his innocence all these years,” said Maria Rodriguez-Lopez, Rodriguez’s sister.

Rodriguez was a lawful permanent resident when he was arrested for the 1995 murder. That status was revoked after he was convicted. He was brought into the country as a child, and his family still resides in the United States.

Rodriguez is one of at least 160 people who have been exonerated and freed from prison after having been convicted of a felony in Cook County. That number is higher than the number of exonerations for most states.

It is the tenth exoneration case since 2016 that is related to former retired Chicago police detective ...

by Matt Clarke

On April 25, 2018, the Supreme Court of New Jersey held that a trial court erred when, on the eve of trial, it permitted the State to amend the indictment to increase a charge from a third-degree to a second-degree felony.

Following surveillance on a suspected drug dealer, police pulled over Todd Dorn’s vehicle and told him they were in the process of obtaining a search warrant for the vehicle and his home. He consented to a search of both locations. Thirty-five glassine bags containing heroin and 2.65 ounces of marijuana were found in his home.

Dorn was indicted on multiple counts, including second-degree possession of heroin with intent to distribute within 500 feet of public housing, a public park, or public building in violation of N.J.S.A. 2C35-7.1 (count one) and third-degree possession of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building in violation of N.J.S.A. 2C35-7.1 (count two).

Dorn rejected a pre-trial plea bargain offer of five years imprisonment with two-and-a-half years parole ineligibility. The day before the trial, the prosecutor moved to amend the indictment to ...

by Matt Clarke

Around the nation, powerful lobbying groups composed of associations of prosecutors are influencing state legislatures to reject certain laws, regardless of how popular the proposed laws are with the electorate.

In his January 2018 State of the State address, New York Governor Andrew Cuomo called for justice reform legislation that would limit civil-asset forfeiture, revamp discovery, reduce trial delays, and significantly lessen the use of cash bail. To underscore his commitment, he told the story of Kalief Browder who, at age 16, was jailed for allegedly stealing a backpack.

Browder, who maintained his innocence, was unable to post the $3,000 cash bond, so he spent three years in New York City’s notorious Rikers Island jail awaiting trial. There, he was abused by other prisoners and staff and was frequently placed in solitary confinement. The charges were dropped, but the trauma remained. Two years after he was freed, Browder took his own life.

During the address, Cuomo told Browder’s brother, who was an invited guest, “I want you to know that your brother did not die in vain. Sometimes, the Lord works in strange ways—but he opened our eyes to the urgent need for real reform.... We ...

by Matt Clarke

On March 2, 2018, the Supreme Court of Idaho vacated a prisoner’s conviction and sentence for possession of a controlled substance and ordered an acquittal because the substance she possessed had not been adequately identified as a controlled substance beyond a reasonable doubt.

Gracie Jean Tryon, an Idaho state prisoner, appealed her conviction for possession of methamphetamine. She had been a passenger in her boyfriend’s truck when it was stopped by a detective for a traffic violation. The detective allegedly smelled the faint odor of marijuana and used that as justification to search the vehicle. He found stems and black residue in a small purse, two hypodermic syringes, two glass pipes, and a Baggie with a white crystalline substance in a large purse. He arrested Tryon and her boyfriend.

At her trial for possession of a controlled substance and possession of drug paraphernalia, the detective testified that the white substance looked like methamphetamine, that he usually found pipes or syringes when he found methamphetamine, and that they were next to each other in the purse. He also said when he asked the boyfriend, who was not available to testify at the trial, whose methamphetamine was it, the ...

by Matt Clarke

It has been years since the National Academy of Sciences and the President’s Council of Advisors on Science and Technology published studies casting serious doubt on courtroom claims of practitioners of “pattern matching” forensics, a broad field that includes comparative analyses of such items as hairs, fibers, bite marks, shoe sole impressions, “tool marks,” and tire treads. Yet people remain in prison whose convictions were based on those and other largely discredited forensics, such as “shaken baby syndrome.”

The friction between the sciences and courts results from a fundamentally different philosophy. Courts honor the primacy of precedent, i.e., courts view earlier opinions as controlling and strive for finality, so that once appeals are lost, a conviction becomes virtually unassailable. In contrast, science is a learning process in which questioning the past and constantly revising beliefs to comport with new data and understanding is considered a virtue. If a new theory shows past thinking to be in error, it is adopted. On the other hand, the legal system tends to bury its mistakes, prizing the finality of convictions and preserving the public’s faith in the judicial system above the continual search for the truth.

Perhaps ...