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Articles by Steve Horn

Report: Right to Trial Exists in Name. In Reality, Only 3% of Cases Go to Trial

by Steve Horn

The Sixth Amendment to the U.S. Constitution guarantees a right to trial by jury, but a new report documents that in the U.S. criminal justice system, trials have become the rare exception — not the rule.

The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It” was published in July by the National Association of Criminal Defense Lawyers (“NACDL”).

It has added to the volumes of scholarship on the topic, concluding that the right to a jury trial in criminal courts has all but gone extinct in the United States. In more precise terms, the report says only about 3 percent of criminal court cases go to trial, with the rest put to bed via plea bargaining.

The “trial penalty,” details the report, “results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.”

“If there were no discrepancy at all, there would be far less incentive for defendants to plead guilty. But the gap between post-trial and post-plea sentences can be so wide ...

Conviction Integrity Units, Innocence Commissions Tackle Wrongful Convictions, Prosecutorial Misconduct

by Steve Horn

Conviction integrity units, known as CIUs and sometimes referred to as conviction review units or CRUs, have in recent years become increasingly widespread in county prosecutors’ offices throughout the U.S. They sit alongside actual innocence commissions, which exist in several states and review claims of innocence among those who say they have received a wrongful conviction, both serving as safeguards set up to fend off wrongful convictions and prosecutorial misconduct.

Both have been subject to praise and criticism. Some say they can help halt the ability of prosecutors to win wrongful convictions, while others say they’re a step in the right direction but leave more to be desired. But it is undeniable that, at least to a minor degree, both have shown signs of promise for appellants in the U.S. legal system in getting a second look at their convictions, in some ways challenging the clout of prosecutors’ offices.

But what are CIUs and innocence commissions, exactly, and how do they work both theoretically and in-action?

CIU 101

To critics, CIUs are seen as inherently a conflict of interest and an example of the proverbial fox guarding the henhouse, given the unit is a sub-office ...

Documents Reveal How Law Enforcement Partners with Private Companies to Surveil Schools

by Steve Horn

Unbeknownst to college students across the country, their school may be surveilling their social media activity. What may be even more surprising to learn is that even individuals who have no affiliation with a school that’s engaged in this type of surveillance may nevertheless have their social media activity scooped up in the school’s social media surveillance dragnet simply due to their proximity to campus.  

That’s what happened to Bobby Padgett. He wasn’t a student at East Carolina University (“ECU”). But that didn’t stop him from being monitored and surveilled on social media by the campus’ upper-level administrators and law enforcement unit utilizing a third-party company’s platform to do so.

Padgett – an activist who lived off campus when it happened in 2016 – had posted on Twitter calling the university’s chancellor a “right wing PoS [piece of shit]” and saying that it was “Time to crash his account or [to do an] old school sit in.”

The tweet caught the attention of administrators and law enforcement officers at ECU, who were using a platform named Social Sentinel to monitor key words in public posts on the social media sites Twitter, Facebook, and Instagram ...

Eric Schneiderman Pushed Laws Opposing Abuse of Women as He Stands Accused of Abusing Them Himself

by Steve Horn

Eric Schneiderman, who resigned as New York’s Attorney General May 8, had a record of supporting legislation and criminal law enforcement to protect women from sexual abuse. However, allegations surfaced that he did not practice what he preached. A former state senator prior to his election as attorney general in 2010, Schneiderman’s rising-star political career came crashing down after The New Yorker magazine revealed a pattern of both physical and emotional abuse toward at least four romantic partners in New York City. Schneiderman, who resigned just hours after the article went public, might potentially face criminal charges and is under investigation by a special prosecutor, Nassau County District Attorney Madeline Singas. In a conversation with The New Yorker, one of his accusers revealed that Schneiderman told her, “I am the law.” In contrast to his personal behavior, Schneiderman’s work showed a history of advocacy on women’s issues and law enforcement.

Strangulation Prevention Act

As a state senator in 2010, for example, Schneiderman introduced and sponsored the Strangulation Prevention Act (S.6987), which became law. But two women told The New Yorker that, in fact, Schneiderman had physically abused them by slapping and choking them.

“They did ...

Academic Paper Highlights Need to Tighten Rules for Fingerprint Evidence in Light of False-Positive Error Rate

by Steve Horn

A new study published in the UCLA Law Review reveals a potential for rule tightening on the use of fingerprint evidence in the U.S. judiciary.

The Reliable Application of Fingerprint Evidence,” written by University of Virginia School of Law professor Brandon Garrett, focuses on the State v. McPhaul decision in the North Carolina Court of Appeals in November 2017.

The defendant, Juan McPhaul, faced charges of attempted first-degree murder, assault, and robbery with a dangerous weapon stemming from a Domino’s Pizza delivery in North Carolina. In retracing McPhaul’s steps, law enforcement pulled fingerprint data from pizza and chicken wing boxes and other items seized from the address associated with his order. The prints were cited as evidence in the successful prosecution of McPhaul in trial court.

However, upon appeal, the reliability of that fingerprint evidence was questioned by McPhaul’s defense team. They pointed to inadequate cross-examination responses by the prosecution’s fingerprinting expert about the methodology used to confirm the fingerprints’ accuracy.

While fingerprint evidence is often viewed as nearly infallible, the science backing that assessment is lacking. As a result, the National Academy of Sciences in 2009 and the Presidential Council of Advisors on ...

Courts Have Made Social Media a Landmine for Defendants. Could It Change Soon?

by Steve Horn

Social media, broadly defined as encompassing popular websites, and smartphone applications such as Facebook, Twitter, Instagram and others, has been pointed to by many as a potentially revolutionary avenue through which citizens from around the world can communicate with one another to effect change and participate in democratic actions.

Underneath that popular narrative sits a murkier reality for defendants in the U.S. criminal justice system. A recent history of court rulings, combined with lack of legislative action on the federal-level, has ushered in an era in which law enforcement has nearly carte blanche authority to utilize social media during criminal investigations.

The broad authority given to law enforcement agencies to use social media has real-life consequences for defendants in the criminal justice system, even amid debate over Fourth Amendment privacy protections. Everyone from journalists, to criminal justice scholars, legislators, and the U.S. Supreme Court, have called for updated constitutional or legislative protections over law enforcement use of social media.

Some have heeded that call, predominantly in the legislative sphere – in city councils across the country and particularly in California. But, at the federal level, little has been done in courts or Congress to regulate ...

The Long, Dark History of Law Enforcement’s Warrantless Bus Searches

by Steve Horn

The more things change, the more they stay the same. That’s a truism to many observers of history and politics, but in the orbit of the U.S. criminal legal system, it’s literally governed by precedential decisions.

So, when news broke early this year about U.S. Customs and Border Protection (“CBP”) agents working alongside the company Greyhound to perform warrantless searches on its buses to sniff out people ICE agents think might be undocumented immigrants, something about that fact pattern seemed awfully familiar. Enter: the 1991 U.S. Supreme Court case, Bostick v. Florida.

The Bostick ruling — and everything that followed it — is key. Under 8 U.S.C. § 1357(a)(3), CBP has a 100-mile range extending from the border in which to conduct warrantless searches of any vehicle passing through that territory.

That 100-mile range, criticized as too broad by the American Civil Liberties Union (“ACLU”), was deemed “a reasonable distance from any external boundary of the United States” under that statute. The ACLU derisively calls the 100-mile range, in which two-thirds of the U.S. population lives, a “Constitution-Free Zone.”

But the reality: Greyhound buses have long been ...

Golden State Killer Suspect Arrest Opens Floodgates for Law Enforcement Use of DNA Websites

by Steve Horn

The use of DNA-based genealogy websites to track down Joseph DeAngelo — the “Golden State Killer” suspect — appears to have inspired police departments nationwide. It’s a move that has irked privacy advocates and criminal justice system reformers.

DeAngelo, a former police officer and alleged serial killer in the 1970s and 1980s, was arrested April 25 at his home in Sacramento County, California. He has been charged with murdering 12 people in California. He also is a suspect in dozens of rapes and over 100 burglaries.

Law enforcement officials stated they utilized the open-source family DNA website, creating a genetic profile under a fake name that helped lead them to DeAngelo.

Most criminal law experts say those who hand over their DNA to websites like GEDmatch have no expectation of privacy under the Fourth Amendment. But whether that same legal logic applies to their extended relatives, though, will remain an open question as the Golden State Killer’s case weaves its way through the courts.

Currently, DeAngelo is being held in the Sacramento County Jail without bail. A judge may soon order law enforcement to unseal more documents pertaining to the circumstances that led to the arrest, according to ...

Alabama’s Most Populous County Reaches Bail Reform Settlement, But Problems Could Persist

by Steve Horn

Jefferson County, the most populous county in Alabama, reached a Resolution Agreement on April 6 with the U.S. Department of Justice and the group Equal Justice Under Law in response to a complaint brought by the group alleging that the County court system’s bail policy violated Title VI of the Civil Rights Act.

The Agreement mandates that the County will do “risk-based assessments and pretrial release alternatives, acting as substitutes for traditional bail bond requirements in determining which defendants are released prior to trial and to establish a fully-funded pretrial services agency for Jefferson County,” explains Equal Justice Under Law’s press release announcing the striking of the deal.

The deal comes in the aftermath of an administrative complaint filed by Equal Justice Under Law against the Tenth Judicial Circuit of Alabama on February 19, 2016 through the U.S. Department of Justice’s Division of Civil Rights.

Virginia Pretrial Risk Assessment

The Resolution Agreement directs Alabama’s Tenth Judicial Circuit to utilize the Virginia Pretrial Risk Assessment Instrument (“VPRAI”) to make decisions on bail and the expenses relating to posting bail, as opposed to the system in Alabama, which Equal Justice Under Law alleged was discriminatory in ...

Eric Schneiderman, Once a Champion of Women, Now Accused of Assaulting Four

by Steve Horn

Eric Schneiderman, who resigned as New York’s Attorney General May 8, had a record of supporting legislation and criminal law enforcement to protect women from sexual abuse. However, allegations surfaced that he did not practice what he preached.

A former state senator prior to his election as ...


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