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Prisoner Education Guide

Criminal Legal News: September, 2018

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Volume 1, Number 10

In this issue:

  1. Secondary DNA Transfer: The Rarely Discussed Phenomenon That Can Place the Innocent (and the Dead) at a Crime Scene They’ve Never Been To (p 1)
  2. There’s No Rational Way to Justify America’s Drug Laws (p 8)
  3. Armed and Dangerous: If Police Don’t Have to Protect the Public, What Good Are They? (p 10)
  4. Iowa Supreme Court: Relief from Conviction Not Required When Suing for Legal Malpractice Based on Wrongful Sentence (p 12)
  5. New Mexico Supreme Court: Seriousness of Charged Crime Itself Not Sufficient to Deny Defendant Pretrial Release (p 13)
  6. South Dakota Supreme Court Rules that Trial Court Cannot Reject a Plea Agreement It Already Implicitly Accepted (p 14)
  7. South Dakota Supreme Court Announces Search Incident to Arrest Exception to Warrant Requirement Does Not Apply to Collection of Urine Sample Upon Arrest (p 14)
  8. New York City Gang Database Increases 70 Percent Since 2014 (p 15)
  9. Academic Paper Highlights Need to Tighten Rules for Fingerprint Evidence in Light of False-Positive Error Rate (p 16)
  10. What Some Prison Sentence Lengths Actually Reflect (p 18)
  11. Trial Lawyer Advocates ‘Jury Nullification’ To Acquit the Unjustly Accused (p 18)
  12. Kansas (Finally) Outlaws Sex Between Cops and Detained Citizens (p 19)
  13. California Property Owners Billed for Their Own Prosecution (p 20)
  14. Chicago Tries to Reduce Deficit at its Poorer Citizens’ Expense (p 20)
  15. Maryland’s Top Court Rules Actual Notice by Trial Judge Unnecessary to Trigger Hearing Requirement On Defendant’s Request to Replace Defense Counsel (p 22)
  16. Immigration Authorities Seize Wrongfully Convicted Man After Release (p 22)
  17. NYPD’s Lack of Disciplinary Record Transparency Frustrates Prosecutors (p 23)
  18. Why Sex Offender Registries Keep Growing Even as Sexual Violence Rates Fall (p 24)
  19. Third Circuit Grants Habeas Relief to Prisoner Convicted of First-Degree Murder Without Evidence of Specific Intent to Kill (p 25)
  20. Kansas Supreme Court: Deadly Weapon-Use Finding Prerequisite to Imposing Violent Offender Registration Requirement (p 26)
  21. Sixth Circuit Reverses Relevant Conduct Firearm Enhancement Because No Connection Between Possession Charges Based on Two Separate Shootouts (p 26)
  22. Drug Detection Using Fingerprints in the Works (p 27)
  23. Hawaii Supreme Court Vacates Conviction Due to Prosecutor’s Bogus Argument Attacking Defense Counsel (p 28)
  24. How Coercive Interrogations Can Lead to a False Confession (p 28)
  25. $9 Million Settlement in Baltimore Wrongful Conviction Case (p 29)
  26. Fifth Circuit Affirms Habeas Relief Granted to Louisiana Prisoner Who Overcame SOL by ‘Credible Showing of Actual Innocence’ (p 30)
  27. Minneapolis Police Used EMS Staff to Drug Certain Suspects, Report Says (p 31)
  28. Seventh Circuit: ‘Force’ for Aggravated Sexual Abuse Requires ‘Physical Force,’ Not Psychological Coercion (p 32)
  29. U.S. Supreme Court: Drivers of Rental Cars Not on Rental Agreement Have Expectation of Privacy (p 32)
  30. Washington Supreme Court Clarifies Process by Which Insanity Acquittees May Petition for Release (p 34)
  31. U.S. Supreme Court’s Carpenter Decision a Warning to Police on Warrantless Data Searches (p 34)
  32. SCOTUS’ Unanimous Death-Penalty Jury Verdict Decision Affecting Florida Cases (p 35)
  33. New Kansas Law Compensates Those Wrongfully Convicted (p 35)
  34. Virginia Supreme Court Holds Convictions for Common Law and Statutory Involuntary Manslaughter Violate Double Jeopardy Clause (p 36)
  35. New Jersey Appellate Division Extends Urbina Self-Defense Rule to Defense of Others in Plea Allocution (p 36)
  36. Georgia Defense Attorney Wins Another ‘Jury-Nullification’ Case (p 37)
  37. Cato Institute: Require Cops to Carry Liability Insurance (p 37)
  38. SCOTUS Issues Landmark Fourth Amendment and Digital Privacy Opinion in Carpenter (p 38)
  39. Eighth Circuit Rules Officer’s Inability to Read Temporary Vehicle Tag Does Not Justify Traffic Stop, Evidence Obtained Must be Suppressed (p 39)
  40. New York City Decriminalizes Some Public Smoking of Marijuana in Policy Shift (p 40)
  41. First Circuit Holds Appeal Not Barred by Plea Agreement Waiver Provision When Sentence Exceeds Agreement (p 40)
  42. Texas Courts Rubber Stamp Post-Conviction Fact Findings in Death Penalty Cases, Study Says (p 41)
  43. Can Cops Shoot a Fleeing Suspect in the Back? (p 41)
  44. News in Brief (p 42)
  45. New Jersey AG Intervenes in Possible Wrongful Conviction Case, Considers Reforms (p 42)

Secondary DNA Transfer: The Rarely Discussed Phenomenon That Can Place the Innocent (and the Dead) at a Crime Scene They’ve Never Been To

by Christopher Zoukis

In 1930, the French scientist Edmond Locard published a journal article in which he laid the groundwork for what would become the field of forensic science. Locard said a criminal actor will always leave traces of his or her presence at a crime scene and will always leave with traces of the scene on his or her person. Locard’s Exchange Principle revolutionized police investigative techniques.

The discovery of DNA further transformed the field of forensics. DNA exists in every person at the molecular level and is highly particularized to an individual. As such, DNA evidence has become the gold standard for forensic identification in criminal cases. When a suspect’s DNA is found at a crime scene, investigators have strong, virtually unassailable proof that the suspect was there.

Or do they?

Recent developments in the field of DNA analysis are allowing investigators to identify individuals using smaller and smaller samples of material. No longer are forensic scientists limited to large drops of blood or semen stains found at crime scenes. Modern DNA testing can yield an individualized profile using as few as three or four cells.

These advances have undoubtedly allowed investigators to solve crimes that they ...

There’s No Rational Way to Justify America’s Drug Laws

People assume a medical committee sat down to consider which recreational drugs were the safest and least addictive, and this wise group decided alcohol and tobacco should be legal, while marijuana and everything else shouldn’t. That’s not what happened.

by Maia Szalavitz, tonic.vice.com

In 2013, CNN’s medical correspondent, Sanjay Gupta, offered a rare public apology. He admitted that he was wrong about medical marijuana and had been “too dismissive” of patients’ claims about its effectiveness, lumping them in with “high-visibility malingerers, just looking to get high.”

The story of his reversal reveals a fundamental and ongoing problem with the way the media and public view our drug laws—and why we need to understand their origins to move forward.

Admissions of error from either journalists or doctors, of course, are unusual in and of themselves. But this one was triply exceptional in that its author recognized that he’d been taken in by conventional wisdom. To wit, Gupta said:

“I mistakenly believed the Drug Enforcement Agency listed marijuana as a schedule 1 substance because of sound scientific proof. Surely, they must have quality reasoning as to why marijuana is in the category of the most dangerous drugs that have ...

Armed and Dangerous: If Police Don’t Have to Protect the Public, What Good Are They?

by John W. Whitehead, Commentary, The Rutherford Institute

After a shooting spree, they always want to take the guns away from the people who didn’t do it. I sure as hell wouldn’t want to live in a society where the only people allowed guns are the police and the military. — Author William S. Burroughs

In the American police state, police have a tendency to shoot first and ask questions later.

In fact, police don’t usually need much incentive to shoot and kill members of the public.

Police have shot and killed Americans of all ages—many of them unarmed—for standing a certain way, or moving a certain way, or holding something—anything—that police could misinterpret to be a gun, or igniting some trigger-centric fear in a police officer’s mind that has nothing to do with an actual threat to their safety.

In recent years, Americans have been killed by police merely for standing in a “shooting stance,” holding a cellphone, behaving oddly and holding a baseball bat, opening the front door, running in an aggressive manner holding a tree branch, crawling around naked, hunching over in a defensive posture, wearing dark pants and a basketball jersey, driving while deaf, being ...

Iowa Supreme Court: Relief from Conviction Not Required When Suing for Legal Malpractice Based on Wrongful Sentence

by Dale Chappell

In an issue of first impression in Iowa, the Supreme Court of Iowa held that relief from a wrongful sentence is enough to allow a legal malpractice claim regarding that sentence, and the defendant need not obtain relief from the underlying conviction.

Having spent an extra year in prison because his lawyer failed to challenge that his probation had ended before a probation violation occurred, Ray Kraklio obtained relief when the district court agreed that he was not on probation at the time of the violation. However, when Kraklio sued his lawyer, Kent Simmons, for failing to raise that issue, causing him to spend more time in prison, the district court granted summary judgment in favor of Simmons, concluding that Kraklio could not show that he obtained relief from the underlying conviction to meet the relief-required rule (a.k.a. the exoneration rule). Kraklio appealed, and the court of appeals reversed, holding that relief from the wrongful sentence was enough. Simmons petitioned to the Iowa Supreme Court, which agreed to hear his appeal.

The question before the Supreme Court was whether Kraklio may sue his lawyer for malpractice over a sentencing error allegedly caused by the malpractice ...

New Mexico Supreme Court: Seriousness of Charged Crime Itself Not Sufficient to Deny Defendant Pretrial Release

by Dale Chappell

A court must not automatically consider any single factor to be dispositive when deciding whether to deny or grant pretrial release, but must consider several factors on the record to determine if an accused must be detained, the New Mexico Supreme Court held.

Mariah Ferry, having been charged with first-degree murder, was granted pretrial release after the court determined that, while the crimes were “gruesome and heinous,” that alone was not enough to keep Ferry in jail until trial. The State disagreed and appealed that decision to the New Mexico Supreme Court.

On appeal, the State argued that the district court erroneously concluded that the nature of the charges, “no matter how serious the crime,” are “never sufficient” to prove a defendant’s future dangerousness and thus denial of pretrial release. The Supreme Court observed that is one reasonable interpretation of the district court’s ruling. However, another reasonable interpretation is that it did consider the seriousness of the charges and nevertheless concluded that certain conditions of release could still reasonably protect the community.

New Mexico law provides that bail may be denied by a court if the State proves “by clear and convincing evidence” that the ...

South Dakota Supreme Court Rules that Trial Court Cannot Reject a Plea Agreement It Already Implicitly Accepted

by Christopher Zoukis

The Supreme Court of the State of South Dakota reversed a trial court’s decision to reject a binding plea agreement because it had already implicitly accepted the agreement at the change-of-plea hearing. The January 24, 2018, ruling remanded the case back to the lower court for sentencing in accordance with the plea agreement in question.

Landon Lyndale Hale and two co-defendants were indicted on 19 counts related to the kidnapping and robbery of Caden Jackson in July 2016. The State offered Hale a great deal: Plead guilty to one count of aggravated assault and cooperate against the other defendants, and he would be guaranteed a sentence with a cap of suspended prison time. Hale agreed.

At the change-of-plea hearing, the trial judge explained the plea deal and possible sentence to Hale, specifically noting that “[t]he plea agreement here does not let me use any of the penitentiary time immediately” and “[a]s long as you comply with the terms of my probation, you can keep yourself out of the pen.” Hale agreed with all of that, and the court had him formally plead guilty to the aggravated assault charge.

Hale then kept his ...

South Dakota Supreme Court Announces Search Incident to Arrest Exception to Warrant Requirement Does Not Apply to Collection of Urine Sample Upon Arrest

by Dale Chappell

Law enforcement must secure a warrant prior to obtaining a urine sample from an arrestee, the Supreme Court of South Dakota held in an issue of first impression before the Court.

Hi Ta Lar was arrested after a lawful traffic stop turned up some marijuana and a pipe in the car. Though no drugs were found on Lar and he was only a passenger in the car, law enforcement ordered Lar to urinate in a cup to test for the presence of illegal drugs. Lar did not give his consent, and law enforcement did not obtain a warrant to collect his urine.

The test revealed that Lar had methamphetamine in his system, and he was charged with unauthorized ingestion of a controlled substance, among other drug charges. He filed a motion to suppress evidence obtained via chemical analysis of his urine, but the circuit court denied his motion.

Lar agreed to plead guilty to the ingestion of a controlled substance charge, and the State dropped the other charges. He was sentenced to three years in prison and filed an appeal. The issue before the South Dakota Supreme Court was “Whether law enforcement may, without a warrant, require ...

New York City Gang Database Increases 70 Percent Since 2014

by Derek Gilna

Concerns are being raised about a 70 percent increase in the New York City Police Department (“NYPD”) gang database revealed in a recent public records request by CUNY School of Law professor Babe Howell. Since Mayor Bill de Blasio took office in 2014, the NYPD has added tens of thousands people to that database, of whom 99 percent were classified as non-white.

It’s more than a little ironic that de Blasio—who has often clashed with the NYPD over his criticism of the police department’s use-of-force and even been confronted with dozens of officers turning their back on him at an officer’s funeral—has presided over such an explosive increase over the past four years.

According to Howell, as of February 2018, there were 42,334 people in that database, with 2,706 additional gang members listed as inactive.

All of this has occurred while New York City crime rates have steadily dropped, and gang-related crime has declined to less than 1% of that declining total.

A key issue with the increased membership in the database is the broad definition of what constitutes a “gang,” which according to the NYPD consists of a group of persons with a ...

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 ...

What Some Prison Sentence Lengths Actually Reflect

by Ed Lyon

When a criminal convictee is sentenced, the number of months or years assessed does not always mean the convictee will remain in prison for that entire time.

Nearly all states and most other jurisdictions in the world have a parole system where prisoners are conditionally released into society, under varying levels of supervision after meeting eligibility and suitability requirements. Some jurisdictions have statutory maximums built into imprisonment periods regardless of sentence length, while others may use mandatory release to parole supervision schemes.

Thailand’s penal code has a sentence limit of 20 years built into its laws. Phudit Kittitradilok was sentenced to 13,275 years in prison in December 2017 for running a Ponzi scheme. The long sentence in his case served only the appearance of justice.

Norway did away with the death penalty in 1902. In 1981, the country abrogated life sentences. The maximum prison sentence in Norway now is 21 years.

To relieve prison overcrowding, Texas adopted a mandatory supervision release scheme in 1977. A prisoner would either serve a third of the sentence in violent cases or build a third with flat time, coupled with earned good time, to be mandatorily released from prison to ...

Trial Lawyer Advocates ‘Jury Nullification’ To Acquit the Unjustly Accused

by Derek Gilna

Mark Bennett, a 22-year criminal trial lawyer, argues that responsible citizens have a duty to serve on a criminal jury as a reasoned observer of the trial process — and not as a pawn of a system meant to over-awe them into an emotionally driven conviction.

He also advocates that serving on a jury as an objective individual puts you in a position to practice the time-honored practice of “jury nullification.”

According to that doctrine, “jury nullification” is “finding the defendant ‘not guilty’ regardless of whether the state has proven the accusation beyond a reasonable doubt.”

This practice, he said, is “rooted in the principle that a juror can and should reach whatever verdict her conscience leads her to, and that there is nothing the government, or anyone else, can do to stop her beforehand or punish her afterward.”

“A jury is the entity that acts as the voice of the community, and serving as a juror allows you to contribute to that voice,” he continued. “You may also believe that the law under which the defendant is being prosecuted is an illegitimate use of state power.”

However, he said, neither the ...

Kansas (Finally) Outlaws Sex Between Cops and Detained Citizens

A new Kansas law makes it illegal for cops to have sex with people they pull over or detain for investigation. If you are one of the many who naturally thought this was already illegal, you are in good company: Kansas legislators thought so, too.

“Those of us who have been there for a few years thought it was something that had already been taken care of in law,” said Rep. John Carmichael (D-Wichita).

Prior to Republican Gov. Jeff Colyer signing the new bill into law, it was legal for Kansas police to have “consensual” sex with detainees, including citizens pulled over for traffic violations. Kansas was not alone. According to the Kansas City Star, 32 other states still allow “consensual” sex between cops and detainees.

Rep. Cindy Holscher (D-Olathe) introduced the bill, which bans sexual relations “during the course of a traffic stop, a custodial interrogation, an interview in connection with an investigation, or while the law enforcement officer has such person detained.”

Holscher said the bill was inspired by affidavits surfacing in the wrongful conviction investigation of Lamonte McIntyre. The detective who arrested McIntyre, Roger Golubski, apparently had a history of demanding sex from detainees, in ...

California Property Owners Billed for Their Own Prosecution

by Christopher Zoukis

An investigation by the Desert Sun has uncovered an unusual phenomena in two California communities: The cities are taking property owners accused of public nuisance infractions to criminal court with the help of private prosecutors. The law firm providing those services is then billing the property owners thousands of dollars—for their own prosecution.

The cities, Indio and Coachella, have partnered with the law firm of Silver & Wright.

According to the Desert Sun, the firm is a state leader in “nuisance crime legal work.” This is a highly specialized area, as private property nuisances are generally pursued by city attorneys in civil court.

Silver & Wright’s method is different. In the case of Indio and Coachella, the firm contracts with the cities to handle the legal end of nuisance claims. When a nuisance is uncovered, the firm prosecutes the case in criminal court and then bills the defendant for its fees. The Desert Sun investigation determined that there is a “staggering” disparity between the fines paid by nuisance defendants and the fees charged by Silver & Wright.

Take the case of Cesar Garcia, for instance. Garcia was taken to criminal court by Silver & Wright for ...

Chicago Tries to Reduce Deficit at its Poorer Citizens’ Expense

by Ed Lyon

Chicago may be Frank Sinatra’s kind of town, but not for many of the city’s poorer citizens. They would probably move, if only they did not owe the city so much money and either were, or are now, too poor to do so.

Chicago has a decades-long history of financial irresponsibility. Its 2007 budget deficit was $94 million. When Rahm Emanuel became mayor in 2011, it had grown to a whopping $650 million, as well as many more billions of dollars in pension debt that was not funded.

Shortly after assuming office, Emanuel announced: “Moving forward there will be no more free rides, debt scofflaws will be found and they will pay what they owe the City,” when he introduced the first city budget under his reign. It would tragically become the city’s poorer citizens who, if they were not already in debt to Chicago, soon would be.

Fees were increased for trash collection, water, sewage, mandatory auto stickers, minor city taxes and fines—even one for allowing weeds to grow too tall in a yard, permits and garage parking, cigarette taxes, cable TV fees, and many, many more.

Nuisance fines, such as for possessing prohibited drugs ...

Maryland’s Top Court Rules Actual Notice by Trial Judge Unnecessary to Trigger Hearing Requirement On Defendant’s Request to Replace Defense Counsel

by Christopher Zoukis

Maryland’s top court, the Court of Appeals, reversed the conviction of a defendant because the trial court failed to entertain and rule on the defendant’s multiple written requests to fire his attorney.

The February 21, 2018 opinion upheld an intermediate court of appeal order that reversed his convictions and remanded for further proceedings.

Robert Weddington was arrested on multiple charges relating to the sexual abuse of two minors.

On October 28, 2015, Weddington mailed a letter to the judge seeking permission to terminate his public defender. On November 9, 2015, pursuant to Md. Rule 4-215(e), a hearing was held, and Weddington’s request was denied. Trial was set for February 2, 2016.

Thereafter, Weddington sent two additional letters making similar requests, one received by the circuit court clerk’s office on November 24, 2015, and the other received on January 20, 2016.

Although the letters were received by the clerk’s office, the trial judge did not did not actually become aware of the letters until after Weddington’s trial. Both letters unequivocally requested that his attorney be relieved of her duties. Weddington was convinced that his public defender believed that he was guilty and was not using her best ...

Immigration Authorities Seize Wrongfully Convicted Man After Release

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 ...

NYPD’s Lack of Disciplinary Record Transparency Frustrates Prosecutors

by Betty Nelander

Disciplinary records of New York Police Department officers who arrest people have been closely shielded. Even the district attorneys, who sometimes must decide whether to charge arrestees with crimes based on an officer’s word, have often been out of the loop.

But now a news organization has revealed the secretive disciplinary records of NYPD officers from 2011 to 2015. And the public can see that hundreds of employees committed eye-opening offenses.

The internal records obtained by BuzzFeed through an anonymous source and verified by its investigation revealed officers were disciplined for offenses ranging “from lying to grand juries to physically attacking innocent people.”

“Many of the officers lied, cheated, stole, or assaulted New York City residents. At least fifty employees lied on official reports, under oath, or during an internal affairs investigation,” said BuzzFeed. “Thirty-eight were found guilty by a police tribunal of excessive force, getting into a fight, or firing their gun unnecessarily. Fifty-seven were guilty of driving under the influence. Seventy-one were guilty of ticket-fixing. One officer, Jarrett Dill, threatened to kill someone. Another, Roberson Tunis, sexually harassed and inappropriately touched a fellow officer. Some were guilty of lesser offenses, like mouthing off ...

Why Sex Offender Registries Keep Growing Even as Sexual Violence Rates Fall

Lists that include out-of-state visitors are inflating the numbers and keeping fear at a boil.

by Steven Yoder, theappeal.org

Quentin (not his real name) was convicted eight years ago of child pornography possession in Florida. He served his time and has since moved to another state. But his sentence required his photo and other personal details to appear on Florida’s sex offender registry, and there they will stay for the rest of his life, even if he never sets foot in the state again.

The state’s registry is padded with thousands of Quentins, people who don’t live in Florida. Under a change to state law passed this spring, there will soon be more: Starting July 1, out-of-state registrants who visit for at least three days (down from five) must go to a sheriff’s office to have their personal details added to Florida’s list. If they don’t, they face a third-degree felony.

Rules like that aren’t unique—22 other states keep out-of-state visitors on their registries for life, according to a study released last November. It’s one reason state lists misrepresent the actual number of people with sex-crime records living in communities. As already-bloated lists keep ballooning, they feed the impression ...

Third Circuit Grants Habeas Relief to Prisoner Convicted of First-Degree Murder Without Evidence of Specific Intent to Kill

by Christopher Zoukis

The United States Court of Appeals for the Third Circuit granted a Pennsylvania state prisoner conditional habeas corpus relief because the jury instructions used to convict him of first-degree murder did not require a finding that he had the specific intent to kill. The March 26, 2018, opinion rejected a lower federal court’s ruling and sent the case back to the state court for further proceedings.

Tony L. Bennett was the wheel man in the organized robbery of a Philadelphia, Pennsylvania, jewelry store in 1990. During the robbery, fellow conspirator Michael Mayo used Bennett’s handgun to shoot and kill salesperson Ju Yang Lee. Bennett was arrested and charged with murder, criminal conspiracy, robbery, and possession of an instrument of crime. He was charged capitally, and the trial judge gave jury instructions on first-, second-, and third-degree murder. Bennett was found guilty of all charges, including first-degree murder. He was sentenced to life without parole on the murder charge.

In 1995, Bennett initiated the post-conviction relief proceedings that ultimately landed in federal court 23 years later. He argued that the trial court violated his due process right by improperly instructing the jury that he could be convicted of ...

Kansas Supreme Court: Deadly Weapon-Use Finding Prerequisite to Imposing Violent Offender Registration Requirement

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 ...

Sixth Circuit Reverses Relevant Conduct Firearm Enhancement Because No Connection Between Possession Charges Based on Two Separate Shootouts

by Christopher Zoukis

The United States Court of Appeals for the Sixth Circuit reversed a lower court’s ruling that two unrelated instances of gun possession were part of the same course of conduct. The March 27, 2018, opinion ruled that for two, non-contemporaneous illegal firearm possessions to be part of the same course of conduct, “they must, among other factors, be connected by strong evidence of similarity.”

Defendant Karl Amerson was allegedly involved in two different shootouts in Battle Creek, Michigan. On May 6, 2016, police recovered a .40 caliber handgun that tested positive for Amerson’s DNA from the scene of one incident. Following another shootout in August 2016, police recovered a loaded .22 caliber semi-automatic rifle, a loaded .380 semi-automatic pistol, and several boxes of ammunition from the apartment of Amerson’s girlfriend. After Amerson admitted owning the pistol and rifle, he was arrested.

Amerson was not charged with any crime related to the shootouts, but he was charged with being a felon in possession of a firearm. He agreed to plead guilty to possession of the weapons found in the apartment, and the Government agreed not to prosecute him for the .40 caliber recovered during the May 2016 ...

Drug Detection Using Fingerprints in the Works

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 ...

Hawaii Supreme Court Vacates Conviction Due to Prosecutor’s Bogus Argument Attacking Defense Counsel

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 ...

How Coercive Interrogations Can Lead to a False Confession

by Brian Leslie

To discuss coercive interrogation methods, we must first understand the difference between an interrogation and an interview. The primary difference is that an interview is fact-finding, non-accusatory and usually takes place earlier on in an investigation. The interrogation, on the other hand, is accusatory, involves persuasive techniques and is usually conducted in a controlled environment. The most important aspect of any interrogation is that the interviewer should have, through prior investigation, established a presumption of guilt of the suspect. While in an interview, the primary purpose is to obtain the facts of the case; whereas, the purpose of an interrogation is to obtain a confession.

One issue of concern, however, is the investigative method in which the interviewer established a presumption of the suspect’s guilt.

The methods of investigation used by law enforcement agencies are deductive and inductive. The deductive method refers to a model used when investigators only accept information that fits the initial theory they have formed on how the crime occurred and who the prime suspects are. In this method, adverse or exculpatory evidence can be ignored, thus creating the framework for a narrative the investigator is attempting to achieve. This method can be ...

$9 Million Settlement in Baltimore Wrongful Conviction Case

by Christopher Zoukis

Baltimore officials agreed in May 2018 to settle a claim of wrongful conviction brought by a man who spent more than 20 years in prison for a murder he didn’t commit. The city agreed to pay exoneree James “J.J.” Owens $9 million, the largest settlement in city history, in order to avoid a jury from hearing the shocking details of Owens’ wrongful conviction.

Colleen Williar was raped and murdered in 1987. James Thompson, Owens’ friend and neighbor, decided to try to collect a $1,000 reward by lying to the police about the murder weapon. By the time the Baltimore police were done with him, Thompson had implicated himself and Owens in a crime in which neither were actually involved. They both were tried, convicted, and given life without parole.

It wasn’t until 2006 that the semen found in the victim was tested, and it was immediately clear that it did not belong to either Thompson or Owens. Other evidence that the wrong men had been convicted surfaced, and both Thompson and Owens were granted a new trial.

Prosecutors played hardball, refusing to drop the charges unless the men accepted an “Alford plea.” Such ...

Fifth Circuit Affirms Habeas Relief Granted to Louisiana Prisoner Who Overcame SOL by ‘Credible Showing of Actual Innocence’

by Christopher Zoukis

The United States Court of Appeals for the Fifth Circuit upheld a federal district court’s ruling that a Louisiana man who has served over 35 years in prison for murder should get a new trial. The April 6, 2018, ruling vacated the stay of habeas relief and reinstated the lower court’s order that the State either retry or release the prisoner within 120 days.

William Hines and Rodney Robinson, two gay men, were found murdered in New Orleans within days of each other in late 1980. The circumstances of the crimes were similar; both men were stabbed to death after a long night of drinking and a vigorous bout of sex.

Detective John Dillman investigated both cases and concluded that the same perpetrator was responsible for both murders. Multiple tips indicated that John Floyd, a white male living as a “drifter” in New Orleans, had made incriminating statements linking him to the murders.

Floyd was arrested and charged with two counts of second-degree murder. After Dillman’s interrogation of Floyd, which allegedly involved a severe beating and a threat from Dillman that he would throw Floyd out of a window, Floyd confessed. He then proceeded to trial, maintaining ...

Minneapolis Police Used EMS Staff to Drug Certain Suspects, Report Says

by Betty Nelander

A City of Minneapolis investigation has revealed that some people who were suspected of crimes were drugged by medical responders with a powerful anesthetic at the request of local police. The drugging requests took place over three years.

Ketamine, a date rape drug street-named Special K, was injected to subdue suspects who were reportedly severely agitated, combative, or a threat to themselves or others, although in some cases the individual was already restrained or did not fit the usage criteria, according to the draft report by the Office of Police Conduct Review, a division of the city’s Department of Civil Rights. The drug caused breathing or heart problems, the draft report said, requiring some people to be revived or intubated.

The Minneapolis Star Tribune obtained a copy of the draft report, which said the cases ranged from obstruction of justice to jaywalking.

The emergency medical workers from Hennepin Healthcare were asked to sedate a number of individuals. “Last year, ketamine sedations were used in .095 percent of the 81,500 EMS transports, or calls for service, that we did last year,” said Dr. William Heegaard, chief medical officer at Hennepin County Medical Center. The number of ...

Seventh Circuit: ‘Force’ for Aggravated Sexual Abuse Requires ‘Physical Force,’ Not Psychological Coercion

by Christopher Zoukis

The United States Court of Appeals for the Seventh Circuit reversed the denial of a prisoner’s § 2255 claim of ineffective assistance of counsel, rendering the prisoner’s conviction on charges of aggravated sexual abuse void. The February 20, 2018, opinion sent the case back to the district court for further proceedings.

Milwaukee police officer Ladmarald Cates and his partner responded to a 911 call reporting a fight. During the course of the call, Cates found himself alone with Iema Lemons, one of the alleged participants in the fight. According to Lemons, Cates demanded oral sex and ultimately choked and raped her in the bathroom of her home. Following the sexual encounter, the fighting outside the home resumed, and several individuals, including Lemons, were arrested.

At the police station, Lemons told other officers that she had been raped. She was taken to the hospital, and an examination revealed signs that she had been choked. There were no signs of vaginal injury or other trauma.

The FBI and Milwaukee Police opened an investigation into Lemons’ allegations. Cates initially denied a sexual encounter, but after Lemons’ DNA was found on his boxers, he admitted to having sex with her. He ...

U.S. Supreme Court: Drivers of Rental Cars Not on Rental Agreement Have Expectation of Privacy

by Dale Chappell

The U.S. Supreme Court held that a driver of a rental car who is not listed as an authorized driver on the rental agreement still had an expectation of privacy in the vehicle for Fourth Amendment purposes, concluding that the U.S. Court of Appeals for the Third Circuit erred holding otherwise.

When Terrence Byrd had someone else rent a car so he could transport drugs to Pittsburgh, the person renting the car did not list Byrd as an authorized driver on the rental agreement. Looking “suspicious” to a state trooper, Byrd was stopped for a supposed traffic violation. When law enforcement found that he was not an authorized driver on the rental agreement, one trooper said that he had “no expectation of privacy” in the car, which meant that he could not refuse a warrantless search of the car in the trooper’s estimation. When asked, Byrd also advised law enforcement that he had a “blunt” in the car and offered to give it to the cops. A search turned up body armor and bricks of heroin. Byrd was charged with possession of both items.

Byrd moved to suppress the evidence on the basis that it ...

Washington Supreme Court Clarifies Process by Which Insanity Acquittees May Petition for Release

by Christopher Zoukis

The Supreme Court of Washington clarified the procedures for an insanity acquittee seeking to obtain conditional release from commitment. The March 8, 2018, opinion held that such detainees may petition the court directly without first having to apply indirectly through a petition to the Department of Social and Health Services (“DSHS”). Either the insanity acquittee or DSHS may initiate the process for obtaining release.

The Court also ruled that in either case an indigent acquittee is entitled to appointment of legal counsel when seeking conditional release.

Charles David Fletcher was found not guilty by reason of insanity of assault in 2013. The charges related to a 2011 incident in which Fletcher tried to stab people driving by in their vehicles with a knife. The police arrived, and Fletcher fled in his vehicle, which he crashed into several other vehicles, a telephone pole, and a Subway restaurant.

Two years into his commitment, Fletcher mailed a letter to the superior court judge in which he requested conditional release. The judge wrote Fletcher back and told him that he first needed to apply to DSHS, pursuant to the Revised Code of Washington (“RCW”) 10.77.150. Instead of following the ...

U.S. Supreme Court’s Carpenter Decision a Warning to Police on Warrantless Data Searches

by Derek Gilna

The United States Supreme Court’s 2018 decision in the Carpenter case, which set aside a criminal conviction based upon warrantless extended collection of cellphone location data on Fourth Amendment grounds, came from a court that many observers felt was moving in a more conservative direction.  

This decision showed, however, that the Supreme Court has become more concerned about unchecked, warrantless law enforcement access to the mountains of data accumulated by American citizens. Although a post-Carpenter decision in a recent Georgia appellate court case, Mobley v. State, 2018 Ga. App. LEXIS 430 (2018), ruled in favor of the State in obtaining crash data from a vehicle’s airbag control module (“ACM”) without a warrant, it nonetheless cautioned the police in future cases to just “get a warrant.”

The Mobley Court distinguished the Carpenter holding, noting that in that case police collected warrantless data for 127 days, a much different factual situation from that in Mobley. “A car has little capacity for escaping public scrutiny,” the Court said. “It travels public thoroughfares where both its occupants and its contents are in plain view.” Sevilla-Carcamo v. State, 783 S.E.2d 150 (Ga. App. Ct. 2016). “A ...

SCOTUS’ Unanimous Death-Penalty Jury Verdict Decision Affecting Florida Cases

by Derek Gilna

The effects of the January 2016 United States Supreme Court decision in Hurst v. Florida, 136 S. Ct. 6161 (2016), which overturned Florida’s prior law permitting non-unanimous jury verdicts in death penalty cases, continues to reverberate through the Broward County, Florida, criminal justice system. The previous statute also permitted Florida judges, rather than a jury, to decide whether the facts of a case permit the imposition of a death penalty after a non-unanimous jury recommendation.

As a result of that decision, Florida changed its law, which now requires a unanimous agreement of the jury before a defendant can be sentenced to death. In two July 2018, Broward County, Florida, death-penalty trials, juries handed down life sentences to four capital defendants in the span of one week.

According to the deathpenalty.org website, on “July 16, a Broward County jury spared three defendants—Eloyn Ingraham, Bernard Forbes, and Andre Delancy—whom it had convicted in March of murdering a Broward sheriff’s deputy. Three days later, another Broward jury rejected the death penalty for Eric Montgomery, after having convicted him in April of the murders of his wife and stepdaughter.”

However, a fifth defendant, Peter Avsenew, who fired his attorneys before the penalty-phase ...

New Kansas Law Compensates Those Wrongfully Convicted

by Dale Chappell

Kansas has become the thirty-third state to offer compensation to those who were wrongfully convicted. The new law signed by Gov. Jeff Colyer allows exonerees to be paid $65,000 for each year that they wrongfully spent in prison and $25,000 per year wrongfully on parole or the sex offender registry.

One of those exonerees, Lamonte McIntyre, was present for the signing ceremony and said he was going to use the money to get a car and housing, something he has not been able to do since being released from prison after 23 years for a double murder he did not commit. “I can live a normal life, like everyone else,” he said of the new law. Lamonte was originally told he would get nothing from the state when he was released from prison last year.

In addition to money, the new law also provides exonerees with access to health care, education, and housing assistance, plus a certificate of innocence, which should help with employment when the criminal conviction shows up on a background check.

“Years taken from men and women who have been wrongfully convicted cannot be given back,” Colyer said upon signing ...

Virginia Supreme Court Holds Convictions for Common Law and Statutory Involuntary Manslaughter Violate Double Jeopardy Clause

by Dale Chappell

The Supreme Court of Appeals for Virginia held that convictions for both common law and statutory involuntary manslaughter for the same offense violated the Double Jeopardy Clause and remanded to vacate one of the convictions.

A jury convicted Carroll Gregg Jr., of both common law involuntary manslaughter and involuntary manslaughter under Va. Code Ann. § 18.2-154, after he was found guilty of what he said was an accidental shooting that led to the death of a person who was repossessing his truck. Gregg moved the circuit court to dismiss one of the convictions, arguing it violated the U.S. Constitution’s Double Jeopardy Clause, but his motion was denied. The Court of Appeals, though, reversed, ruling that the convictions were duplicitous and unconstitutional. The State appealed, and the Supreme Court of Virginia agreed to hear the case.

Common law involuntary manslaughter is defined by case law as (1) the accidental killing of a person, contrary to the intention of the parties and (2) that the death occurred during the commission of an unlawful but not felonious act or during the commission of an improper performance of a lawful act. Similarly, statutory involuntary manslaughter, under Code § 18 ...

New Jersey Appellate Division Extends Urbina Self-Defense Rule to Defense of Others in Plea Allocution

by David Reutter

The Superior Court of New Jersey Appellate Division held that a defendant was entitled to post-conviction relief (“PCR”) based on his claim that his guilty plea was involuntary due to his counsel’s failure to explore the defense of others.

Anwar H. Belton appealed the denial of his PCR motion following a plea to first-degree aggravated manslaughter that resulted in an agreed-to 12-year prison sentence. The appellate court found that Belton, “in the course of his plea allocation, suggested a defense of others that was inconsistent with his guilt; his waiver of that defense was not knowingly made; therefore, he did not present a sufficient factual basis of guilt.”

The victim died after Belton was roused from his sleep by two women involved in an altercation with a man. As the man bit and continued to clamp onto the hand of one of the women, Belton put him in a head lock until the man was “snoring.” The man died at the scene. The trial court found these facts supported the charge and that Belton knowingly waived a defense of others. It also denied his PCR motion on that basis.

On appeal, the Superior Court reasoned ...

Georgia Defense Attorney Wins Another ‘Jury-Nullification’ Case

by Derek Gilna

Catherine Bernard, a former public defender in Laurens County, Georgia, who now practices criminal defense, won yet another “not-guilty” jury verdict in a marijuana possession trial on July 12, 2018, by utilizing a modified “jury nullification” approach. The term “jury nullification” refers to a refusal by juries to convict a defendant of violating a law that they might consider unfair or incorrectly applied.

Bernard’s client, Javonnie Mondrea McCoy, a well-respected local landscaper, was found not guilty by a Laurens County jury of manufacturing marijuana, as well as possession of other objects relating to the drug.

In 2017, Bernard won a similar not-guilty verdict for Antonia Willis, who was goaded into buying some joints from an undercover cop.

The strategy is simple, she said. “It’s very important to focus on the individual circumstances to emphasize the defendant’s role in the community.” However, she doesn’t like to use the term jury nullification. “I don’t really care for the term ‘nullification,’” she said. “It has a lot of historical baggage.”

Nonetheless, Bernard is not shy about planting the jury nullification seed in the jurors’ minds, by arguing that the power is in their hands to achieve the ...

Cato Institute: Require Cops to Carry Liability Insurance

by Christopher Zoukis

Clark Neily, vice president for criminal justice at the Cato Institute, made an unusual proposal in a recent op-ed piece in The New York Daily News: require all police officers to carry not just a gun, but also an insurance policy.

Neily’s idea is inspired by the increase, in both number and dollar amount, of liability settlements by policy agencies. In New York, for instance, Neily said more than $308 million was paid out for injuries caused by NYPD officers in 2017 alone. That’s up from $92.4 million in 2007 and $152 million in 2012.

Those dollar amounts are covered 99.98 percent of the time by police departments, which are funded by taxpayers. Offending officers do not pay for the damage they cause—taxpayers do. So Neily argues all officers should be required to carry liability insurance. Doctors, he says, also work in high-pressure situations where life and death is at stake, and they carry malpractice insurance to cover their mistakes. Why shouldn’t police?

The key to Neily’s proposal is the risk-identification expertise possessed by insurance carriers. They know who presents the greatest risk and pool them accordingly. Higher risk insureds pay a higher premium. In ...

SCOTUS Issues Landmark Fourth Amendment and Digital Privacy Opinion in Carpenter

As modern day technology continues to test the limits of many long-held constitutional precepts, the question before the Court in this case was whether the Government conducts a “search” under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.

As Justice Roberts explained in his majority opinion: “The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals … Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.”

More specifically, the Court addressed Government access to the millions of time-stamped records known as “cell-site location information” (“CSLI”), which the phone companies collect and store for their own business purposes and which can pin-point the location of anyone carrying a cellphone whether it is being used or not.

That question arose in a case involving a series of armed robberies of Radio Shacks and other stores in the Detroit area starting in 2010. Witnesses said Timothy Carpenter had planned the robberies, supplied guns and served as lookout, typically waiting in ...

Eighth Circuit Rules Officer’s Inability to Read Temporary Vehicle Tag Does Not Justify Traffic Stop, Evidence Obtained Must be Suppressed

by Christopher Zoukis

The United States Court of Appeals for the Eighth Circuit affirmed a district court’s ruling that evidence obtained during a traffic stop that was not supported by reasonable suspicion must be suppressed. In its April 13, 2018, opinion, the Court said in this case, a police officer’s inability to read a temporary registration card in the back window of a vehicle was not “a particularized and objective basis for suspecting the particular person stopped of breaking the law.”

On July 1, 2016, Waterloo, Iowa, police officer Diane Del Valle followed a BMW driven by a gang member believed to have been involved in a recent shooting. Del Valle wanted to stop the vehicle to investigate the shooting but needed a reason to do so. She saw the BMW had a temporary dealer card taped in the back window and radioed to a fellow officer that “you can see a plate, but you can’t read what’s on it.” The other officer, Jamie Sullivan, replied, “there you go.” Del Valle initiated an “equipment stop,” during which she smelled marijuana and another officer found a gun.

The driver and passenger, Joshua Rode and Daytoviane McLemore, were ...

New York City Decriminalizes Some Public Smoking of Marijuana in Policy Shift

by Derek Gilna

New York City Mayor Bill de Blasio announced that as of September 1, 2018, the New York Police Department will no longer arrest individuals for the public smoking of marijuana in some circumstances and instead will issue tickets. However, those with arrest records, convictions, or open warrants will still be arrested and charged with a crime, he said.

Unchanged will be the police power to stop and search people, which concerns many people who feel that police disproportionally target people of color, a sentiment that is borne out by studies that show 80 percent of marijuana arrests are of non-whites. Unfortunately, since many of those same individuals have arrest records, they will continue to be subject to arrest for any marijuana incidents.

De Blasio said approximately 17,500 individuals are arrested every year for marijuana possession, but he expects the number to drop to around 10,000 with the change in policy. People given a ticket under the new policy will have to wait while police check their database but after that, if they have no warrants or arrests, they will be free to go. But they will be required to appear in court on the ticket ...

First Circuit Holds Appeal Not Barred by Plea Agreement Waiver Provision When Sentence Exceeds Agreement

by David Reutter

The United States Court of Appeals for the First Circuit held a plea agreement’s appellate waiver provision did not bar an appeal where the district court imposed a home confinement provision that was not set forth in the agreement.

Jose Luis Lopez-Pastrana entered into a plea agreement that dismissed two of four counts in exchange for guilty pleas for possession with intent to distribute marijuana and possession of a firearm in furtherance of a drug trafficking crime. The agreement set forth a non-binding recommendation for the court “to impose a sentence at the lower end of the guidelines,” which was zero to six months and statutorily mandated sixty months, respectively.

At sentencing, the court took into consideration that Lopez-Pastrana had “a severe pulmonary illness and limited life expectancy.” The district court then imposed a zero-month sentence on the drug charge and sixty months on the weapons charge. It also imposed concurrent supervised release terms of two and five years. “It then announced the conditions of release, including a twelve-month period of home confinement that would be monitored with an electronic device,” the First Circuit noted.

A colloquy then ensued between the district court and ...

Texas Courts Rubber Stamp Post-Conviction Fact Findings in Death Penalty Cases, Study Says

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 ...

Can Cops Shoot a Fleeing Suspect in the Back?

by Dale Chappell

Decades ago, it was acceptable, even laudable, for a cop to shoot an unarmed fleeing suspect in the back. That opinion, however, has changed over the years, but rarely does such an incident result in criminal charges against the officer. There are several reasons for that.

The law previously allowed an officer to shoot a suspect who was about to flee, even if he was unarmed. But in 1985, the U.S. Supreme Court held that shooting a suspect who is not an imminent threat violates the person’s constitutional rights. Instead, officers can use lethal force on a fleeing suspect only if they have reasonable grounds to believe that the suspect is a danger to others.

A few years later, the Court weakened its decision and held that whether an officer had reasonable grounds to shoot a fleeing suspect depends on the officer’s perspective at the time of the shooting, not on 20/20 hindsight. In other words, a jury must consider what was going through the officer’s head during that split-second decision before he shot the suspect.

In addition, each state makes its own laws on when officers can use deadly force. There is no federal ...

News in Brief

California: If Senate Bill (SB) 439 successfully winds its way through the California Legislature, the state would bar the juvenile justice system from hearing the cases of children younger than 12 who have been criminally charged. The bill’s co-sponsor, state Senator Holly Mitchell, said “The vast majority of young children in California who’ve been accused of an offense are exhibiting behaviors or minor behaviors that did not require any justice involvement.” According to a July 17, 2018, report from TheAppeal.org, 20 states have a minimum age for juvenile justice involvement. In North Carolina, children as young as 6 can be referred in to the system; 11 other states have an age threshold of 10 years old.

California: In yet another example of the overcriminalization trend sweeping the country, food service providers who repeatedly hand out plastic straws next year in Santa Barbara, California, could land behind bars. That’s when a strict new ordinance takes effect.

While some communities have banned the environmentally unfriendly products, Santa Barbara has taken an iron fist approach. According to reason.com, one violation can bring “both an administrative infraction carrying a $100 fine and a misdemeanor, punishable by a maximum fine of $1 ...

New Jersey AG Intervenes in Possible Wrongful Conviction Case, Considers Reforms

by Christopher Zoukis

Newly appointed New Jersey Attorney General Gurbir Grewal has directed his prosecutors to take over an investigation into the 1993 murder conviction of two men who might be innocent.

He also formed a panel to consider whether New Jersey should establish a “conviction review unit” to look at claims of possible wrongful conviction.

Eric Kelley and Ralph Lee were originally convicted of the 1993 murder of a Patterson, New Jersey, video store clerk. Prosecutors alleged that the men beat and stabbed 22-year-old Tito Merino to death during a robbery of the video store. Kelley and Lee confessed to the crime but recanted shortly thereafter.

According to a report from NJ Advance Media, a key piece of evidence was a baseball cap found at the scene. Investigators initially believed that it belonged to the killer. DNA evidence tested in 2014 ruled out Kelley and Lee as the hat’s owner, and the DNA instead pointed to a local man who had just finished a prison sentence for knifepoint robbery that took place a few weeks before Merino’s murder.

The Innocence Project and Centurion Ministries raised questions about the case, and a judge ultimately tossed the convictions. But the Passaic ...




 

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