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Prisoner Education Guide

Criminal Legal News: September, 2018

Issue PDF
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. Trial Lawyer Advocates ‘Jury Nullification’ To Acquit the Unjustly Accused (p 18)
  11. What Some Prison Sentence Lengths Actually Reflect (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. Immigration Authorities Seize Wrongfully Convicted Man After Release (p 22)
  16. 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)
  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. How Coercive Interrogations Can Lead to a False Confession (p 28)
  24. Hawaii Supreme Court Vacates Conviction Due to Prosecutor’s Bogus Argument Attacking Defense Counsel (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. U.S. Supreme Court: Drivers of Rental Cars Not on Rental Agreement Have Expectation of Privacy (p 32)
  29. Seventh Circuit: ‘Force’ for Aggravated Sexual Abuse Requires ‘Physical Force,’ Not Psychological Coercion (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. Can Cops Shoot a Fleeing Suspect in the Back? (p 41)
  43. Texas Courts Rubber Stamp Post-Conviction Fact Findings in Death Penalty Cases, Study Says (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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...




 

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