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Prisoner Education Guide

Criminal Legal News: December, 2017

Issue PDF
Volume 1, Number 1

In this issue:

  1. Absurd, Abusive, and Outrageous: The Creation of Crime and Criminals in America (p 1)
  2. Kentucky Court Rules Death Penalty Statute Applied to Defendant under 21 Years Old Unconstitutional (p 8)
  3. Colorado Supreme Court Rules That Unlawful Sexual Contact Is a Lesser Included Offense of Sexual Assault (p 10)
  4. Colorado Supreme Court Rules That Criminal Trespass Is a Lesser Included Offense of Burglary (p 10)
  5. Fourth Circuit Holds North Carolina Sex Offender Restrictions Unconstitutional (p 11)
  6. Habeas Hints: SCOTUS Review 2016–17 (p 12)
  7. Several States Bar Landlords from Automatically Denying Housing to Felons (p 14)
  8. Nevada Supreme Court: Mistrial Due to Egregious and Improper Conduct by Prosecutor Bars Retrial (p 16)
  9. Third Circuit Holds Habeas Petitioner’s Claim Based on Prosecutor Knowingly Using Perjured Testimony Not Subject to Brecht “Actual Prejudice” Standard (p 16)
  10. Georgia Supreme Court Tosses DUI Conviction Based on Officer’s Testimony of Impairment (p 17)
  11. Oregon Enacts Law Requiring Grand Jury Testimony to Be Recorded—Finally! (p 18)
  12. Proof of Law Enforcement Duty Is Primary Job to Establish Peace Officer Status (p 19)
  13. Ninth Circuit Concludes Mandatory Supervision Akin to Parole for Fourth Amendment Analysis (p 20)
  14. California Felonizes Some Prosecutorial Misconduct (p 21)
  15. New Study: “Broken Windows” Policing May Not Be as Effective as Thought (p 22)
  16. Georgia Supreme Court Rules Flipping the Bird Is Not Disorderly Conduct (p 22)
  17. Eleventh Circuit Holds Defendants Voluntarily Consented to Search in Police Ruse to Search Home Purportedly to Investigate Burglary (p 24)
  18. Pennsylvania Supreme Court Rules State Sex Offender Registration Law Violates Ex Post Facto Clause (p 24)
  19. D.C. Court of Appeals Rules Warrantless Use of Stingray Device Constitutes Unlawful Search and Reverses Defendant’s Convictions (p 25)
  20. Unloaded Firearm in Zipped Case Is Not “Deadly Weapon” under Oregon’s First-Degree Burglary Statute (p 26)
  21. Seventh Circuit: Violent Cop’s Below-Guideline Sentence Not Justified, Again (p 26)
  22. Oregon Supreme Court Rules No Vindictiveness in Resentencing Where Longer Term for Specific Conviction but Overall Multi-Conviction Sentence Shorter (p 27)
  23. Alford Pleas: Prosecutors’ Choice for the Wrongfully Convicted (p 28)
  24. Eighth Circuit: Warrantless Seizure of Handgun Not Permitted under Plain View Doctrine (p 28)
  25. California SVP Determination Based on Hearsay Evidence Reversed (p 29)
  26. Fourth Circuit Holds Supervised Release Revocation Sentence Unreasonable (p 30)
  27. Study’s Data Show Racial Disparity in Plea Bargaining Outcomes (p 31)
  28. Urban Institute Releases Report Detailing the Effects of Criminal Background Checks on Employment (p 31)
  29. Evidence Scandal Leads to the Dismissal of over 140 Texas Criminal Cases (p 34)
  30. Missouri Supreme Court Holds Probation Revocation for Nonpayment of Court Costs Unconstitutional (p 34)
  31. News in Brief (p 35)

Absurd, Abusive, and Outrageous: The Creation of Crime and Criminals in America

by Christopher Zoukis

The U.S. is a world leader in the jailing and imprisoning of its own citizens. The FBI estimates that local, state, and federal authorities have carried out more than a quarter-billion arrests in the past 20 years. As a result, the American criminal justice system is ...

Kentucky Court Rules Death Penalty Statute Applied to Defendant under 21 Years Old Unconstitutional

by Mark Wilson

On August 1, 2017, a Kentucky trial court judge declared the state’s death penalty statute unconstitutional when applied to defendants who were younger than 21 years of age at the time they committed the crime.

In 2005, the U.S. Supreme Court issued its decision in Roper ...

Colorado Supreme Court Rules That Unlawful Sexual Contact Is a Lesser Included Offense of Sexual Assault

by Christopher Zoukis

The Colorado Supreme Court ruled on September 11, 2017 that the crime of unlawful sexual contact is a lesser included offense of sexual assault, meaning the two must merge.

This was the second case dealing with lesser included offenses decided by the Supreme Court on the same ...

Colorado Supreme Court Rules That Criminal Trespass Is a Lesser Included Offense of Burglary

by Christopher Zoukis

The Colorado Supreme Court ruled on September 11, 2017 that the crime of unlawful sexual contact is a lesser included offense of sexual assault, meaning the two must merge.

This was the second case dealing with lesser included offenses decided by the Supreme Court on the same ...

Fourth Circuit Holds North Carolina Sex Offender Restrictions Unconstitutional

by Matt Clarke

On November 30, 2016, the U.S. Court of Appeals for the Fourth Circuit affirmed a federal district court’s judgment that portions of the North Carolina sex offender restrictions statute were unconstitutional.

John Does #1 through #5 (collectively, the “Does”) are persons who have been convicted of ...

Habeas Hints: SCOTUS Review 2016–17

by Attys. Kent Russell & Tara Hoveland

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorney (“in pro per”). The focus of the column is on “AEDPA,” the federal habeas corpus law that now governs habeas corpus practice in ...

Several States Bar Landlords from Automatically Denying Housing to Felons

by Lonnie Burton

At least three states and the federal government are putting landlords on notice: You may not automatically deny housing to someone simply because he or she has a felony record. These rules and guidelines take different forms, ranging from state attorney general directives to lawsuits and court ...

Nevada Supreme Court: Mistrial Due to Egregious and Improper Conduct by Prosecutor Bars Retrial

by Christopher Zoukis

The Nevada Supreme Court ruled on September 14, 2017 that double jeopardy bars retrial of a criminal defendant when a prosecutor intentionally engages in egregious and improper conduct that causes prejudice to the defendant which cannot be cured by means short of a mistrial.

The case before ...

Third Circuit Holds Habeas Petitioner’s Claim Based on Prosecutor Knowingly Using Perjured Testimony Not Subject to Brecht “Actual Prejudice” Standard

by Richard Resch

The U.S. Court of Appeals for the Third Circuit held that when the prosecution knowingly presents or fails to correct perjured testimony, the defendant is entitled to relief upon establishing a reasonable likelihood the false testimony could have affected the jury’s judgment and does not have ...

Georgia Supreme Court Tosses DUI Conviction Based on Officer’s Testimony of Impairment

by Christopher Zoukis

The Georgia Supreme Court sent a message to prosecutors in an October 2, 2017 opinion: A police officer’s testimony as to a defendant’s performance on a horizontal gaze nystagmus (“HGN”) test cannot, by itself, establish a numeric blood alcohol content level.

The HGN test is one of ...

Oregon Enacts Law Requiring Grand Jury Testimony to Be Recorded—Finally!

by Mark Wilson

"Recording grand juries will have a chilling effect on justice,” Clatsop County District Attorney Joshua Marquis inanely protested. “Why ‘fix’ a system that isn’t broken,” said the fox from deep inside the hen house!

Oregon law allows felony charges to be brought against criminal defendants ...

Proof of Law Enforcement Duty Is Primary Job to Establish Peace Officer Status

by David Reutter

The California Supreme Court reversed a conviction of misdemeanor battery upon a peace officer because the prosecution failed to prove harbor officers’ primary duty was law enforcement.

Bryan Pennington was not authorized to enter the Santa Barbara Marina. The manager witnessed his unauthorized entry and called the ...

Ninth Circuit Concludes Mandatory Supervision Akin to Parole for Fourth Amendment Analysis

by Mark Wilson

In 2014, Steven Cervantes pleaded guilty to California counterfeiting and drug felonies. He was sentenced to three years in jail. The sentencing court then divided the sentence into two years of imprisonment followed by one year of mandatory supervision. As part of his plea agreement, Cervantes agreed ...

California Felonizes Some Prosecutorial Misconduct

by Matt Clarke

On September 30, 2016, California Governor Jerry Brown signed into law a bill that was introduced by Assemblywoman Patty Lopez (D-San Fernando), felonizing some prosecutorial misconduct. Under the new law, a prosecutor can be sentenced to up to three years in prison for altering or intentionally withholding ...

New Study: “Broken Windows” Policing May Not Be as Effective as Thought

by Christopher Zoukis

A study published in the scholarly journal Nature Human Behavior has established a connection between proactive policing and crime. But it is not the connection that proponents of proactive policing may have expected. The authors of the study found that temporary cessation of proactive policing actually led ...

Georgia Supreme Court Rules Flipping the Bird Is Not Disorderly Conduct

by Christopher Zoukis

The Georgia Supreme Court ruled on October 2, 2017 that a raised middle finger, without more, amounts to constitutionally protected speech that cannot be grounds for a finding of criminal disorderly conduct.

David Freeman attended a church service at the Flowery Branch campus of the 12 Stones ...

Eleventh Circuit Holds Defendants Voluntarily Consented to Search in Police Ruse to Search Home Purportedly to Investigate Burglary

by David Reutter

The U.S. Court of Appeals for the Eleventh Circuit upheld a warrantless home search that was consented to as a result of a ruse by law enforcement to obtain evidence of credit card fraud under the guise of investigating a burglary of the home.

On two ...

Pennsylvania Supreme Court Rules State Sex Offender Registration Law Violates Ex Post Facto Clause

by David Reutter

The Pennsylvania Supreme Court held that the registration sections of Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) are punitive and thus cannot be applied retroactively. The Court concluded that applying SORNA’s registration requirements to a defendant convicted of offenses prior to SORNA’s effective date but sentenced ...

D.C. Court of Appeals Rules Warrantless Use of Stingray Device Constitutes Unlawful Search and Reverses Defendant’s Convictions

by Richard Resch

In September 21, 2017, the District of Columbia Court of Appeals, the highest court in D.C., ruled that the warrantless use of a cell-site simulator (the generic term for all such devices regardless of the manufacturer or model is “stingrays”) constitutes an illegal search in violation ...

Unloaded Firearm in Zipped Case Is Not “Deadly Weapon” under Oregon’s First-Degree Burglary Statute

by Mark Wilson

The Oregon Court of Appeals held that an unloaded firearm in a zipped carry case is not a “deadly weapon” for purposes of Oregon’s burglary in the first-degree statute.

Michael Norwood was charged with burglary in the first degree, among other offenses. The burglary charge alleged that ...

Seventh Circuit: Violent Cop’s Below-Guideline Sentence Not Justified, Again

by Mark Wilson

The United States Court of Appeals for the Seventh Circuit held for a second time that a lower court improperly failed to explain its rationale for sentencing a violent police officer significantly below the applicable guideline range.

Terry Joe Smith was a police officer with Indiana’s Putnam ...

Oregon Supreme Court Rules No Vindictiveness in Resentencing Where Longer Term for Specific Conviction but Overall Multi-Conviction Sentence Shorter

by Mark Wilson

The en banc Oregon Supreme Court ruled that the “presumption of vindictiveness” is not triggered by an increased sentence on a single count when the aggregate sentence length decreases on resentencing.

Roger Robert Febuary was convicted of five crimes for giving alcohol to a minor and sexually ...

Alford Pleas: Prosecutors’ Choice for the Wrongfully Convicted

by David M. Reutter

When confronted with wrongful convictions, many prosecutors are forcing the exonerated on remand to make a Hobson’s choice: risk another trial or enter an Alford plea and go home. Faced with the uncertainties of a retrial and a desire to be free after years of wrongful ...

Eighth Circuit: Warrantless Seizure of Handgun Not Permitted under Plain View Doctrine

by Mark Wilson

The United States Court of Appeals for the Eighth Circuit held that the warrantless seizure of a handgun did not fall within the Plain View exception and was thus an illegal seizure.

Looking for a person of interest, undercover Independence, Missouri police officer Loran Freeman entered Freaks ...

California SVP Determination Based on Hearsay Evidence Reversed

by Mark Wilson

The Court of Appeal of California, Second Appellate District reversed a Sexually Violent Predator (“SVP”) adjudication, finding that the State’s expert witnesses improperly testified about inadmissible hearsay evidence in support of their conclusion that the SVP statutory criteria were satisfied.

On May 12, 2009, California prosecutors filed ...

Fourth Circuit Holds Supervised Release Revocation Sentence Unreasonable

by Christopher Zoukis

The U.S. Court of Appeals for the Fourth Circuit ruled that a supervised release revocation sentence was plainly unreasonable. The Court concluded that it was not reasonable for a district court to fail to address nonfrivolous arguments advanced by a defendant arguing for a particular revocation ...

Study’s Data Show Racial Disparity in Plea Bargaining Outcomes

by Derek Gilna

The Spring 2017 issue of Justice Quarterly published a report titled “Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process,” which explores the perceived discrepancy in the outcomes for criminal defendants in the plea bargaining process. According to the report, the ...

Urban Institute Releases Report Detailing the Effects of Criminal Background Checks on Employment

by Derek Gilna

The Justice Policy Center, part of the nonprofit Urban Institute, released a March 2017 report examining the impact criminal background checks have on employment and recidivism. According to a recent study, “72 percent of companies perform background checks, and 82 percent of those companies screen potential employees ...

Evidence Scandal Leads to the Dismissal of over 140 Texas Criminal Cases

by Matt Clarke

Destruction of evidence held at the Harris County Precinct 4 Constable’s Office led to the dismissal of over 140 Texas criminal cases—most of them involving drug charges.

When supervisors at the Precinct 4 Constable’s Office directed Deputy Constable Chris Hess to organize the evidence room, they had ...

Missouri Supreme Court Holds Probation Revocation for Nonpayment of Court Costs Unconstitutional

by Mark Wilson

The Missouri Supreme Court sitting en banc ruled that a sentencing court improperly revoked a defendant’s probation for failing to pay court costs without first inquiring into the reasons for his failure to pay.

On July 31, 2008, William Fleming pleaded guilty to two counts of domestic ...

News in Brief

Alabama: An officer with the Sulligent Police Department named Gary Farrior, 60, was arrested on September 5, 2017 and indicted on 12 child sex-related crimes. Investigators with the Alabama State Bureau of Investigation began looking into Farrior after medical professionals alerted law enforcement in June. Two of the victims are ...




 

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