by Matt Clarke

On June 20, 2018, the U.S. Court of Appeals for the First Circuit held that a condition of supervised release prohibiting contact with minors without pre-approval from a probation officer in a plea-bargained possession of child pornography case was clear error and a miscarriage of justice as it prevented contact with a minor son and daughter and was unsupported by the record. The condition was vacated, and the case remanded for the district court to reconsider the condition.

Edwin Cabrera-Rivera was charged with one count each of production and possession of child pornography. He pleaded guilty to the possession count in exchange for a recommendation of a 108-month sentence. The written joint recommendation contained a waiver of appeal and no mention of length or conditions of supervised release. The court sentenced him to 108-months imprisonment and 144 months of supervised release, imposing numerous conditions of supervised release, including one prohibiting him from residing with, accompanying, or socializing with any person younger than 18 years without pre-approval from his probation officer. Cabrera appealed.

The First Circuit held that, because the sentence Cabrera received was the sentenced he agreed to in the joint recommendation, he could not appeal ...

by Matt Clarke

Attorneys for the Office of the Clark County (Nevada) Public Defender say prosecutors routinely violate state and federal laws governing the sharing of information known as “discovery.” They claim the situation is so grave that they have started tracking instances of prosecutorial discovery abuse. Sometimes the information is accidentally withheld, according to public defender David Westbrook, but often evidentiary documents are “wedged between the cracks, and then someone kicks dirt on them till nobody finds [them].”

The public defenders documented at least 28 cases in which prosecutors turned over discovery, such as recordings of jail phone calls, surveillance videos, police reports, body cam recordings, witness information, DNA and other forensic test results, medical reports, and other types of evidence fewer than 30 days before trial. Sometimes they received a large document dump just before trial. In four cases, the late discovery disclosure included exculpatory evidence. Some of the cases had discovery less than a day before trial. Six had discovery being provided only after the trial had already begun.

State law requires prosecutors to turn over witness statements no less than five days in advance of the defendant’s preliminary hearing, long before a trial is ...

by Matt Clarke

Across the country, retailers’ associations are lobbying legislatures to stiffen the punishment for retail theft, allegedly to prevent “organized retail crime,” a fuzzy term often used to describe repeated shoplifting. In Tennessee, Walmart and local prosecutors have taken advantage of a broadly worded burglary statute to felonize what would otherwise be misdemeanor retail theft.

The associations of retailers are pushing for similar language in California and several other states.

Curtis Lawson ran afoul of the Tennessee statute when he “returned” $39.57 worth of products he had not purchased, using a receipt for a purchase he made earlier at a Knoxville, Walmart.

In Tennessee, shoplifting under $1,000 is a misdemeanor, but Lawson’s charges were upgraded to felony burglary after it was discovered that a different Walmart location had sent him a “Notification of Restriction from Property’’ after he was caught shoplifting there four years earlier. The notification “evicted” Lawson, informing him he was “no longer allowed on property owned by Wal-Mart Stores Inc. or in any area subject to Wal-Mart Stores Inc.’s control,” including “all retail locations or subsidiaries” forever.

Tennessee law defines burglary as “unlawfully and knowingly entering a building without the ...

by Matt Clarke

It is a perfect storm of temptation. Many sheriffs in America have little oversight, independent sources of revenue with little fiscal accountability, low salaries, and a lot of power. This leads some of them to pocket funds intended for other purposes.

Some Alabama sheriffs have become examples of what not to do with the food fund for jail prisoners. The state pays the sheriffs a paltry $1.75 per prisoner per day for food. However, there was a tradition among those poorly paid public servants of skimping on food and pocketing the savings.

In 2001, a judge ruled that the jail food in Morgan County, Alabama, was “inadequate in amount and unsanitary in presentation” when ordering the sheriff to serve nutritionally adequate meals.

A few years later, a different sheriff in the same county served two meals a day of corn dogs bought by the truckload at a discount, pocketing $212,000 from the food fund over three years. That led the judge to order that all food fund money be spent on food. The very next sheriff, Ana Franklin, took $160,000 from the food fund. Franklin eventually had to reimburse the misappropriated funds and pay ...

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 ...