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Prisoner Education Guide

Criminal Legal News: December, 2017

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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 a robust behemoth that, across the country, costs taxpayers billions of dollars each year.

The American criminal justice system and the criminal law have their roots in English common law. Developed over hundreds of years, the criminal law reflected what conduct English society and government would not tolerate. Crimes developed either as malum in se—criminal because of the innate wrongfulness of the act—or malum prohibitum—criminal because the government decreed it. Mala in se crimes include murder and rape. Mala prohibita crimes include everything from traffic tickets to drug and gambling offenses.

Modern American criminal law has seen an exponential increase in mala prohibita crimes created by various legislatures. The natural result of creating more and more crimes has been the filling of more and more jail cells with newly-minted criminals. Some of these crimes are absurd, and some are outrageous. Many are subject to shocking abuse in the hands of ...

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 v. Simmons, 543 U.S. 551 (2005), which imposed a categorical ban against executing defendants who were under 18 years old when they committed their offense. The ruling was based largely on the robust body of juvenile brain development research offered by a wide range of experts.

Five years later, the Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), followed Roper and drew again on the juvenile brain development research to impose a categorical ban against life imprisonment without the possibility of parole sentences for juveniles who do not personally commit a homicide. At that time, the Supreme Court observed that juvenile brain development research had grown even more robust in the five years since Roper was decided. The Court again drew upon that research in the context of juveniles and ruled in 2012 and 2016 that mandatory life-without-parole sentences violate the Eighth Amendment’s ban on cruel ...

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 day. In People v. Rock, 2017 CO 84, the Court determined that because the elements of second degree criminal trespass are within the elements of second degree burglary, second degree criminal trespass is a lesser included offense of second degree burglary. In making this determination, the Supreme Court ruled “if establishing the elements of the greater offense necessarily establishes the elements of the lesser, then the lesser offense is included in the greater.”

In Rock, the defendant requested the lesser included offense be presented as an option to enable the jury to convict her of a less severe crime. This is not the only situation in which lesser included offense arguments arise, however. When the State charges someone with two crimes, one of which is a lesser included offense of the other, double jeopardy is potentially implicated.

This was the argument advanced by James Robert Page. He was accused ...

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 day. In People v. Rock, 2017 CO 84, the Court determined that because the elements of second degree criminal trespass are within the elements of second degree burglary, second degree criminal trespass is a lesser included offense of second degree burglary. In making this determination, the Supreme Court ruled “if establishing the elements of the greater offense necessarily establishes the elements of the lesser, then the lesser offense is included in the greater.”

In Rock, the defendant requested the lesser included offense be presented as an option to enable the jury to convict her of a less severe crime. This is not the only situation in which lesser included offense arguments arise, however. When the State charges someone with two crimes, one of which is a lesser included offense of the other, double jeopardy is potentially implicated.

This was the argument advanced by James Robert Page. He was accused ...

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 a sex offense and subject to sex offender restrictions under North Carolina law. With the assistance of Chapel Hill attorney Paul Moore Dubbeling, they filed a federal civil rights lawsuit against North Carolina’s attorney general, governor and 30 district attorneys challenging the constitutionality of N.C. Gen. Stat. § 14-208.18(a)(2) and (a)(3). The statute restricts the movement of individuals who were convicted of a violent sex offense or a sex offense with a victim younger than 16. A violation of the statute is a Class H felony with a presumptive sentence of 20 months in prison.

The Does argued that the statute prevented them from participation in core First Amendment activities, such as attending town council meetings, going to church, visiting government offices, and observing their children’s recreational or educational activities. The district court ruled that the two subsections of the statute at issue were unconstitutional ...

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 courts throughout the United States.

Procedural Default

(Acknowledging and Avoiding the Kiss
of Death)

Federal courts generally refuse to hear claims that were defaulted in state court  because of an “independent and adequate state procedural rule” that the petitioner failed to follow; and which, in turn, caused his or her state habeas corpus petition to be denied on procedural grounds. Avoiding this “kiss of death” in the first place is Job One. If that fails, however, trying to save oneself from the default is discussed here. 

A state court rule is “adequate” if it is firmly established and regularly followed by the state courts as a basis for denying state habeas corpus claims. For example, almost all the states do not permit a petitioner to raise a claim on habeas corpus that could have been raised on direct appeal. This is a principle that, in California, is known as ...

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 decisions, legislation, and in the case of the federal government, rules issued by the Obama Administration’s Housing and Urban Development (“HUD”) Secretary Julian Castro.

Washington State Attorney General Bob Ferguson filed a string of cases in state courts charging five property management companies with violating the Washington Consumer Protection Act by including the restriction “no felons allowed” in apartment advertisements. According to Ferguson, because African-Americans are disproportionately represented in the criminal justice system, the “no felons” restriction amounts to de facto discrimination against blacks.

“It doesn’t mean you have to rent to every felon [who] applies,” Ferguson said, “but you simply cannot have the blanket automatic denial. You have to inquire to find out the nature of that felony.” To avoid a charge of discrimination, Ferguson said a landlord must also find out the age of the conviction and what the applicant has done since the crime before ...

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 the Court involved the prosecution of Lacy L. Thomas, the former CEO of University Medical Center (“UMC”) for several counts of theft and misconduct. The State asserted that Thomas had entered into contracts that favored companies owned by his friends and were grossly unfavorable to UMC. During a lengthy trial, the defense discovered that the prosecution had withheld a binder of exculpatory documents.

When Thomas learned of the withheld evidence, he moved for and was granted a mistrial. He then filed a motion to dismiss all charges pursuant to the Double Jeopardy Clause of the U.S. Constitution, which bars a state from putting a defendant in jeopardy twice for the same offense. The motion was denied, and Thomas petitioned the Nevada Supreme Court for extraordinary relief through a writ of mandamus. Such writs are rarely taken up by high courts, but the Nevada Supreme Court found this issue compelling ...

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 to show “actual prejudice.”

In December 1994, Darrell Cooley was fatally shot outside a bar in Erie, Pennsylvania. Four years later, Vance Haskell was tried for Cooley’s murder. The prosecution presented four eyewitnesses who identified Haskell as the shooter, but all four were problematic witnesses. One recanted, and two had previously denied they could identify the shooter. The fourth eyewitness, Antoinette Blue, was purportedly consistent in identifying Haskell and claimed that she expected nothing in return for her testimony.

However, her testimony was not true, and the prosecutor knew that the testimony was perjurious. Despite Blue’s claim to the contrary, she expected to receive help in her pending criminal case in exchange for her testimony. The prosecutor failed to correct Blue’s testimony and even vouched for her veracity during closing argument. She subsequently received very favorable treatment in her own criminal case.

Haskell was convicted and filed a habeas ...

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 several field sobriety tests used by police officers when they suspect that a driver is drunk. When properly administered, the test reveals up to six “clues” that indicate impairment. In the case before the Court, Mellecia Spencer exhibited four out of six clues and was arrested for driving under the influence.

At trial, the State presented the police officer’s testimony on the HGN test results. The officer testified that “four out of six clues generally indicates a blood alcohol level equal to or greater than a 0.8.” On the basis of this testimony, which was not accompanied by any evidence of the scientific basis for the officer’s conclusion, Spencer was convicted.

The Georgia Supreme Court began its analysis by noting that precedent in the State requires a trial court to determine “whether a scientific principle or technique is competent evidence in a criminal case” prior to admitting such ...

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 by grand jury indictment or preliminary hearing. Yet prosecutors have historically opted for secretive, one-sided, grand jury proceedings that typically benefit only the prosecution over preliminary hearings.

Preliminary hearings occur in open court, with both the prosecution and defense presenting evidence. A judge presides over the proceeding and determines whether probable cause exists to charge the individual. Grand juries, on the other hand, are secretive proceedings in which only the prosecutor, grand jurors, and witnesses are present.

“Our state is one of the few in the union that have ‘secret’ grand jury proceedings,” according to criminal defense attorney Harry R. Carson. He hailed the new law, stating that it “is about fairness and transparency in the prosecution of those accused of crimes.” Carson added, “Defendants have a right to know what their accusers have said under oath. And if that testimony is different from what the witnesses say ...

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 Santa Barbara harbor patrol. Harbor patrol officers Richard Hubbard and Ryan Kelly responded to the call in a marked harbor patrol truck, wearing uniforms, badges, sidearms, Tasers, handcuffs, and other policing tools.

They saw Pennington near a storage box, holding a coiled hose over his shoulder. The officers stood near the exit gate and blocked Pennington’s path. They told him to stop and said he could not leave with the hose. Pennington returned the hose and tried to walk past the officers. When they tried to use force to stop Pennington, he stepped back and forcefully kicked each and began throwing “wild punches.”

The officers subdued Pennington and restrained him until the Santa Barbara Police Department arrived to take him into custody. Pennington was charged with multiple offenses, including battery on a “peace officer.”

In a pretrial ruling, the trial court granted the prosecution’s motion to conclude as ...

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 to abide by mandatory supervision conditions, including a warrantless, suspicionless, search condition.

While serving his mandatory supervision term, Cervantes and his girlfriend, Samanthe Farish, were stopped by a police officer for jaywalking. Cervantes admitted that he was on “probation” and subject to a search condition. The officer searched Cervantes and found a room key to the Ayres Hotel in his pocket. Cervantes said he and Farish were renting a room on the third floor of the hotel and that his belongings were in the room. The officer let them leave without citing them for jaywalking.

Nothing found on Cervantes or any of his answers gave the officer any reason to suspect that Cervantes was engaged in criminal activity. Nevertheless, the officer searched his room, believing that his search condition authorized a warrantless, suspicionless search. Police found counterfeit currency and equipment used to make it—all in plain view.

Cervantes was arrested ...

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 evidence that could help exonerate a defendant.

Previously, such prosecutorial misconduct was a misdemeanor, but a 2010 study of prosecutorial misconduct by the Santa Clara School of Law’s Veritas Initiative found that “courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.”

“I hear so many stories about innocent people across California, and across the country, who have been wrongfully convicted,” said Lopez. “I just hope that when people think the rules don’t apply to them, they will think twice before they abuse their power.”

“When a prosecutor intentionally withholds exculpatory evidence, an unknowing and innocent defendant can be convicted, sentenced, and incarcerated for a long time,” according to California Attorneys for Criminal Justice, a group of criminal defense attorneys that supported the bill. “These bad-acting prosecutors rarely ...

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 to a decline in major crimes reported.

According to the study, proactive policing involves “systematic and aggressive enforcement of low-level violations.” This method of policing, also known as “broken windows,” places a premium on fighting smaller crimes. The idea is that doing so deters more serious crimes by signaling that the area is being monitored and that criminal activity will not be tolerated.

“[R]ather than wait for citizens to report criminal conduct,” explained the authors, “law enforcement…proactively patrol communities, maintaining order through systematic and aggressive low-level policing.”

New York City has embraced the concept of proactive policing for decades. Former New York City Police Commissioner William Bratton introduced the concept in the 1990s, and it appeared to be highly successful. Indeed, there was a “[c]orrespondence between the introduction of proactive policing in New York and the city’s historic drop in major crime” ...

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 Church on August 3, 2014. During the service, Pastor Jason Berry asked all teachers present to stand so that the congregation could pray for them to have a good school year. Freeman, who was in the back of the church, stood up among the 50 or so teachers and gave the finger. He also stared angrily at Pastor Berry, and as the bewildered congregants exited, he yelled about “sending children off to the evil public schools and having them raised by Satan.”

Freeman was charged with disorderly conduct, found guilty, and sentenced to 12 months of probation and issued a $270 fine. He appealed the conviction, arguing that the disorderly conduct statute was facially unconstitutional because it is impermissibly vague and overbroad.

The Georgia Supreme Court rejected Freeman’s facial challenge to the disorderly conduct statute. Freeman contended that the statute was vague because it allowed a conviction based on ...

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 occasions, Caleb Hunt burglarized the home of Chenequa Austin and Eric Spivey. The first burglary was reported to police by Spivey. The second time, Hunt tripped a newly installed security alarm. After responding to the audible alarm, police caught Hunt. He informed them the residence was the site of substantial credit card fraud, and “had so much high-end merchandise in it that he [burgled] it twice.”

The South Florida Organized Fraud Task Force became involved. U.S. Secret Service Special Agent Jason Lanfersiek and about 10 others held a planning session, during which they “made a decision to come up with the methodology of employing [a] ruse,” when they pretended “to investigate burglaries that had already been solved, as a way to get consent to enter the home and search for evidence of credit-card fraud,” dissenting Judge Martin wrote.

 Austin invited Lantersiek and Lauderhill Police Department Detective ...

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 afterwards violates the federal and state Constitutions’ Ex Post Facto Clause.

The Pennsylvania General Assembly strengthened its sex offender registration laws with the enactment of SORNA in 2012. It created three tiers, with Tier III requiring lifetime registration. Jose Muniz was convicted in 2007 of touching the breasts of his girlfriend’s 12-year-old daughter. He absconded prior to sentencing but was recaptured for sentencing in September 2014.

SORNA requires categorization as Tier III for persons convicted of indecent assault of a person less than 13 years of age, so Muniz was sentenced to lifetime registration requirements as a Tier III offender. Muniz argued unsuccessfully that he should have been sentenced to a 10-year registration period under the then-effective Megan’s Law III before it was replaced by SORNA.

The Pennsylvania Supreme Court granted review and began its analysis with Muniz’s federal ex post facto claim. It found that SORNA was enacted for ...

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 of the Fourth Amendment, and any evidence obtained through its use should have been excluded from evidence. Accordingly, the Court overturned the defendant’s convictions.

In October 2013, two women were sexually assaulted at knifepoint and robbed of their cell phones. Investigators discovered that both victims had received calls from the same telephone number. Investigators tracked a phone in the suspect’s possession through the use of a stingray, but police did not obtain a warrant prior to utilizing the device. By tracking one of the target phones, the stingray led police to the car in which the suspect, Prince Jones, was sitting. Police arrested him and recovered evidence from him and the vehicle. Jones also made an incriminating statement to investigators.

Much of the evidence used against Jones at trial was collected through the use of the stingray. Jones presented a pretrial motion to suppress, arguing that such evidence was the ...

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 Norwood entered or remained in a dwelling “while armed with a deadly weapon.”

During a bench trial, the prosecution introduced evidence that Norwood entered an unoccupied dwelling and stole four of the victim’s 14 firearms, including a Smith and Wesson AR-15. The victim testified that the AR-15 was fully functional but unloaded and inside a closed, zippered, “carry bag.” Norwood also stole ammunition for the weapon, which was stored in a separate bag.

In closing argument, the prosecution argued that the “armed with a deadly weapon” element of burglary was satisfied because Norwood had stolen the victim’s firearms and ammunition. Defense counsel did not move for judgment of acquittal or argue during closing argument that the evidence of deadly weapon possession was insufficient. The trial court ultimately found Norwood guilty and sentenced him to 144 months in prison and a 36-month, post-prison, supervision term.

Norwood filed a petition ...

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 County Sheriff’s Department. In separate incidents, the six-foot, three-inch, 270-pound officer violently attacked two compliant arrestees.

Smith punched one arrestee in the face with a closed fist, causing immediate and extensive facial bleeding and swelling. The arrestee was taken to a hospital by ambulance. Smith bragged to other officers and mocked officers who objected to his unjustified attack. Two fellow officers testified against Smith, describing the sound of the blow as a tomato hitting a concrete wall. The arrestee was fully under the control of four other officers and did not present a threat when Smith sadistically attacked him.

Several months later, Smith and other officers arrested an intoxicated man who was accused of assaulting a woman during a domestic dispute. Smith led the handcuffed man to a patrol car. The man was not actively resisting in any way, but Smith raised him in the air, threw him face-first onto ...

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 abusing her. He was sentenced to consecutive 75-month prison terms on two sexual abuse convictions and a 20-month prison term on an attempted sodomy conviction. The trial court also imposed concurrent 60-month probation terms on sexual harassment and furnishing alcohol to a minor convictions. This resulted in a 170-month prison term and a 60-month probation term.

The Oregon Court of Appeals reversed because of an evidentiary error at trial. The prosecution dismissed three charges on remand after Febuary pleaded guilty to one count of sexual abuse and one count of furnishing alcohol to a minor.

The sentencing court cited the “malicious” and “profoundly offensive” nature of Febuary’s crimes and reduced overall sentence exposure as “non-vindictive reasons” to increase the sentence on the alcohol conviction. Ultimately, the court imposed a 75-month prison term on the sexual abuse conviction and a consecutive 12-month prison term on the alcohol conviction, resulting in a ...

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 imprisonment, many defendants enter the plea.

The Alford plea, as with most things in the law, is named after the defendant who made it infamous. Henry Alford was indicted on first-degree murder charges in 1963. His case was problematic from the start because he had a prior murder conviction, and while there were no eyewitness to the crime, there were witnesses who said he admitted to the murder.

Alford’s attorney advised him to accept a second-degree murder guilty plea to avoid North Carolina’s gas chamber. Alford accepted the plea but maintained his innocence. Thus, an Alford plea is similar to a nolo contendere (no-contest) plea, but it is, in reality, a guilty plea while still maintaining one’s innocence. With a plea of nolo contendere, the defendant does not expressly admit guilt. 

The judge sentenced Alford to a 30-year prison sentence. An appeals court overturned the conviction, but in 1970 ...

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 Tattoo Shop, believing the person worked there. Employee Joseph Lewis was sitting at the reception desk in a common area inside the front door. Freeman did not see the person of interest, so he looked around for about 10 minutes and left.

A few minutes later, Freeman returned with detective Aaron Gietzen. They did not have a warrant. A customer was seated in the common area, but nobody was at the reception desk. The detectives rang a bell on the desk, but no one answered. The customer said Lewis was in the back of the shop. Just behind the reception desk, an open doorway led to a work area. No signs indicated that it was a restricted area. Freeman knocked on the door frame for two or three minutes, asking if anyone was there, and identifying himself and Gietzen. When nobody answered, Gietzen entered the work area and knocked on ...

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 a petition seeking to commit Joseph Burroughs as an SVP, pursuant to section 6601 of California’s Sexually Violent Predators Act (“SVPA”).

Dr. Nancy Webber, a clinical forensic psychologist under contract with the State to provide SVP evaluations, was contracted to evaluate Burroughs in 2009. When he refused to meet with her, Webber relied upon hearsay documentary evidence to assess whether he satisfied the SVP statutory criteria. That evidence included probation reports, police reports, his mental health history, and institutional behavior reports.

Dr. Christopher North, a licensed psychologist who performs SVP evaluations for California, Washington, and the U.S. Department of Justice, was also contracted by the State to evaluate Burroughs in 2009. Similarly, Burroughs refused to participate in evaluations performed by North, so he also relied primarily on hearsay documentary evidence including police reports, probation reports, prison records, violation reports, and other miscellaneous documents “to get as complete a picture ...

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 sentence. The Court also held that a district court must sufficiently explain its reasoning when it imposes a statutory maximum sentence, even in the case of a revocation sentence.

Defendant Lacresha Janelle Slappy was serving a five-year term of supervised release for armed bank robbery when she was deemed to be in violation by her probation officer on October 27, 2015. The motion for revocation alleged that Slappy stole a pair of shoes, failed to report for seven urine screens, used marijuana, left the jurisdiction without permission, and absconded from supervision. The district court found her guilty of using marijuana and leaving the jurisdiction without permission.

At sentencing, the parties agreed that the sentencing guidelines recommended a sentence of seven-to-13 months of imprisonment, with a statutory maximum of 36 months. Slappy requested 13 months, while the Government argued for 36 months. Slappy presented evidence of her post-incarceration rehabilitation, which included ...

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 “findings suggest that blacks, and black males in particular, are less likely to plea, and are expected to receive a lower value for their plea.”

The study examined 907 felony cases represented by public defenders in a circuit court in a large county in Florida. The 32-page report notes that “the growing recognition of the salience of prosecutorial discretion, attention to biases in the earlier phases of case processing is increasing.”  Authors Christi Metcalfe and Ted Chiricos explore the influence of race and sex not only in plea negotiations, but also in the “probabilities of a charge reduction,” an area that they note has been “under-examined by justice researchers.”

The research “demonstrates that, on average, whites have a significantly greater (a) probability of a charge reduction when they plead guilty and (b) estimated probability of a charge reduction if they were to be convicted at trial ...

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 for their criminal histories.”

The report warns that criminal background checks “often yield inaccurate and incomplete data,” with some of them not distinguishing “between arrests that resulted in conviction and those that did not.” Additionally, others “include criminal records that have been legally expunged.” Such faulty background checks often result in excluding otherwise qualified individuals from gaining employment.

Most federal, state, and local law enforcement databases are likely to include any contact between individuals and law enforcement, even if that contact did not result in an arrest, charges, or conviction. Another troubling aspect of some databases is the fact they often double or even triple count the same incident, resulting in an unfairly inflated impression of a person’s criminal record.

Employers often perform criminal background checks to screen potential employees for offenses directly related to the work that they would be performing as well as to ...

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 no idea what they were in store for. From January 1, 2016 until he was fired on April 12, 2016, Hess destroyed or threw out items of evidence affecting hundreds of active criminal prosecutions. This led then-Harris County District Attorney Devon Anderson’s office to dismiss over 140 pending criminal prosecutions by the end of September 2016. All of the first 101 dismissed cases were nonviolent, and all but five involved drugs.

Federal investigators looking into the destruction of evidence said there may be as many as 21,500 individual pieces of evidence that were destroyed, which resulted in over 150 defendants being erroneously jailed or convicted.

“This is something that should never happen,” said Harris County Constable Mark Herman. “It’s devastating, it really is. But we’ll get over it. We’ll get through it.” The 150-plus defendants affected by the evidence destruction, however, likely will not get over it ...

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 assault. The court sentenced him to concurrent seven-year prison terms on each count. It suspended execution of the sentences and placed Fleming on probation for five years. The court also imposed $4,263.50 in court costs and ordered that he pay those costs within the first three years of probation.

Throughout his probation term, Fleming received treatment for “mental health issues,” collected Supplemental Security Income payments, and remained unemployed. Fleming’s probation officer repeatedly noted that he was struggling financially and lacked the ability to pay the court-ordered costs.

During a September 9, 2011 probation revocation hearing, the court found, based on Fleming’s admission, that he had violated the probation condition requiring him to pay his court costs within three years.

The court deferred final disposition of the matter until an April 12, 2013 hearing. While acknowledging that people should not “be sent to prison because they can’t pay ...

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 younger than 12 years of age, and one is older than 12. He has been in law enforcement for decades and has been with the Sulligent Police Department for over 15 years. His bond has been set at $500,000.

Connecticut: Former State Troopers Xavier Cruz and Rupert Laird were terminated in early September 2017. They face multiple charges in connection with the kidnapping and hour-long beating of a man accused of pinching a woman’s butt. Court documents reveal that Laird told the victim “you touched my girl, you know you’re gonna pay for this.” The victim was taken to a basement and told to remove his glasses and clothing. He was then headbutted and reported being kicked and punched over 20 times. He was also beaten with a baton more than 15 times and ordered to kneel on a metal kitchen grater. The victim went to the hospital ...




 

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