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Prison Profiteers

Criminal Legal News: October, 2018

Issue PDF
Volume 1, Number 11

In this issue:

  1. From Abuse of the Body to Abuse of the Mind: Police Use Psychologically Coercive Interrogation Techniques to Produce False Confessions (p 1)
  2. Plainclothes Officers, 6 percent of NYC Police Force, Involved in 31 percent of Fatal Police Shootings (p 10)
  3. The Broad Reach of Carpenter v. United States (p 12)
  4. Insurance, Courts Protect Cops from Liability (p 13)
  5. NY Court of Appeals Holds Trial Court’s Failure to Advise Defense of Jury Note Contents Constitutes Reversible Error (p 14)
  6. Iowa Supreme Court Announces Actual Innocence Claim Is Freestanding Claim That Can Be Made Even After Guilty Plea (p 14)
  7. Prosecutors Use Their Power to Help Reform Criminal Justice (p 15)
  8. Kentucky Supreme Court Overrules Flawed Brindley Opinion and Announces Commonwealth Cannot Appeal Judgment of Acquittal (p 16)
  9. Eight Death Row Prisoners Opt for Untested Nitrogen Gas Over Inhumane Lethal Injection (p 16)
  10. California Court of Appeal Holds Box Cutter Not ‘Inherently’ Deadly Weapon (p 17)
  11. 10th Circuit: Oklahoma’s Second-Degree Burglary Not an ACCA Qualifying Offense (p 18)
  12. New Jersey Supreme Court Holds 2014 Amendment to Megan’s Law Violates Ex Post Facto Clause (p 18)
  13. NY Court of Appeals Affirms Dismissal of DWI for Improper Breathalyzer Refusal Warning (p 19)
  14. Texas Court of Criminal Appeals Holds Sua Sponte Jury Instruction on Self-Defense Also Applies to Lesser-Included Charges (p 20)
  15. Seventh Circuit Affirms Order Granting New Trial Due to Newly Discovered Evidence (p 20)
  16. New Jersey AG Intervenes in Possible Wrongful Conviction Case, Considers Reforms (p 21)
  17. Kentucky Supreme Court Tosses Evidence Holding Dog Sniff of Nervous Driver with Prior Drug Charges was Unreasonable (p 22)
  18. Archaic Disciplinary System Allows Chicago Police to Delay Punishment (p 22)
  19. $28.1 Million Jury Verdict for Wrongful Convictions Upheld by 8th Circuit (p 23)
  20. Eric Schneiderman Pushed Laws Opposing Abuse of Women as He Stands Accused of Abusing Them Himself (p 24)
  21. ACLU Questions Trade Secrets Protecting DNA Testing Algorithms (p 25)
  22. Study Indicates Link Between Officer Fatigue and Public Complaints (p 25)
  23. Many Sheriffs Tempted by Lack of Oversight or Fiscal Accountability (p 26)
  24. 11th Circuit Rules Immigration Judges are United States Judges for Purposes of 18 U.S.C. § 115(a)(1)(B) (p 26)
  25. Fired Director of New York’s Criminal Forensic Science Division Alleges ‘Catastrophic’ DNA Errors (p 27)
  26. Iowa Supreme Court Announces Greater Privacy Protections Under State Constitution for Impounded Vehicles Than Provided by Fourth Amendment (p 28)
  27. New York, Faced With Millions in Payouts for Prosecutorial Misconduct, Becomes First State to Create Oversight Commission (p 28)
  28. Houston Forces Parolees out of City Under New Rule (p 29)
  29. From the Big Box to the Big House: Walmart Helps Tennessee Prosecutors Felonize Shoplifting (p 29)
  30. Federal Judge Extends Stay of Executions in Louisiana (p 30)
  31. Idaho Supreme Court Rules Dead-Body Reporting Statute Unconstitutional As Applied to Defendant (p 30)
  32. Louisiana Sheriffs’ Association Backpedals on Its Pre-Trial Detainee Figures (p 31)
  33. Civil Forfeiture Often Focuses on Profit Instead of Public Safety (p 31)
  34. 1st Circuit: No Protective Sweep Where Identified Suspects Already in Custody at Time of Warrantless Search (p 32)
  35. $9 Million Settlement in Baltimore Wrongful Conviction Case (p 32)
  36. Hair Analysis a Useful but Not Foolproof Forensic Tool (p 33)
  37. Your Papers, May I See Your Papers? (p 33)
  38. Federal Judge Effectively Ends Albuquerque’s Civil Asset Forfeiture Program as Too Focused on Revenue and Not on Due Process (p 34)
  39. New Jersey Supreme Court Holds Inventory Search May Not Serve as Ruse for Investigatory Search (p 34)
  40. Hawaii Supreme Court Vacates Conviction Because Defendant’s Waiver of Right to Testify Deficient Under State’s Tachibana Colloquy Requirement (p 35)
  41. Louisiana Supreme Court Holds Counsel’s Failure to Challenge ‘Stark Contrasts’ in Witness ID and Defendant’s Appearance Constituted IAC (p 36)
  42. Sixth Circuit: Procedural Error and Plain Error for Judge to ‘Surprise’ Defendant and Impose an Upward Variance (p 36)
  43. ICE Utilizes Military-Style Shock Tactics to Round up Immigrants (p 37)
  44. Private DNA Lab Under Fire for Faulty Analysis (p 38)
  45. Sixth Circuit Rules Relying on Search Warrant Based on ‘Bare Bones’ Affidavit Objectively Unreasonable, Grants Motion to Suppress (p 38)
  46. Washington Supreme Court Strikes Down Pornography Prohibition as Unconstitutionally Vague (p 39)
  47. Victims’ Rights Laws a Threat to Due Process (p 40)
  48. Federal Court Suppresses Evidence Where Consent to Search Vehicle Obtained Via Google Translate (p 40)
  49. News in Brief (p 42)

From Abuse of the Body to Abuse of the Mind: Police Use Psychologically Coercive Interrogation Techniques to Produce False Confessions

by Christopher Zoukis

In mid-1997, Michelle Moore-Bosko was raped and stabbed to death in her Norfolk, Virginia, apartment. Based on a tip from a friend of the victim, U.S. Navy sailor Danial Williams was brought in for questioning. After more than 11 hours of interrogation, Williams confessed to the murder ...

Plainclothes Officers, 6 percent of NYC Police Force, Involved in 31 percent of Fatal Police Shootings

by Matt Clarke

Recently published information shows that plainclothes officers, who make up about 6 percent of the New York Police Department (“NYPD”), are involved in 31 percent of New York City’s fatal police shootings. This has led critics to question the behavior of NYPD’s plainclothes officers, who often act ...

The Broad Reach of Carpenter v. United States

"The Broad Reach of Carpenter v. United States" by Paul Ohm was originally published June 27, 2018, on Just Security

Carpenter v. United States is an inflection point in the history of the Fourth Amendment. From now on, we’ll be talking about what the Fourth Amendment means in ...

Insurance, Courts Protect Cops from Liability

by Dale Chappell

Lots of lawsuits get filed against law enforcement, but very few result in a payout. Police have an ever-growing shield called “qualified immunity” and decades of court decisions to hide behind. And even when there is a payout, it is not groundbreaking.

The U.S. Supreme Court recently ...

NY Court of Appeals Holds Trial Court’s Failure to Advise Defense of Jury Note Contents Constitutes Reversible Error

by Dale Chappell

The Court of Appeals of New York held that a trial court’s failure to make the defendant aware of the content of notes by the jury to the court was error requiring reversal, even though the issue was raised for the first time on appeal.

During the ...

Iowa Supreme Court Announces Actual Innocence Claim Is Freestanding Claim That Can Be Made Even After Guilty Plea

by Dale Chappell

The Supreme Court of Iowa adopted and announced a new rule that characterizes claims of actual innocence as freestanding claims under Iowa’s postconviction-relief statute, regardless of whether the applicant has knowingly and voluntarily pleaded guilty and thereby overturning its prior cases that had barred relief under those ...

Prosecutors Use Their Power to Help Reform Criminal Justice

Prosecutors are using their power to reach beyond the courtroom to reform the country’s prison crisis and usually much more effectively and efficiently than lawmakers could do.

Last fall, Philadelphia District Attorney Larry Krasner began working to reverse prosecutorial practices in the city that led to the highest incarceration rate ...

Kentucky Supreme Court Overrules Flawed Brindley Opinion and Announces Commonwealth Cannot Appeal Judgment of Acquittal

by Dale Chappell

The Supreme Court of Kentucky held that the Commonwealth cannot appeal from a judgment of acquittal in a criminal case after a jury’s guilty verdict, interpreting the Kentucky Constitution and overturning its prior decision on the issue.

Michael Maupin was charged with failing to comply with Kentucky’s ...

Eight Death Row Prisoners Opt for Untested Nitrogen Gas Over Inhumane Lethal Injection

by Betty Nelander

A decision by Alabama lawmakers means that death row prisoners in the state could face execution by nitrogen hypoxia instead of barbaric lethal injection.

The decision renders moot a lawsuit by eight death row prisoners who also opted for this untested method over the injections. On July ...

California Court of Appeal Holds Box Cutter Not ‘Inherently’ Deadly Weapon

by Dale Chappell

A box cutter is a type of knife “designed to cut things and not people,” and was therefore not “inherently” a deadly weapon as a matter of law, the Court of Appeal of California Second Appellate District held, overturning a defendant’s conviction.

There was no question that ...

10th Circuit: Oklahoma’s Second-Degree Burglary Not an ACCA Qualifying Offense

by David Reutter

The Tenth Circuit Court of Appeals held convictions for burglary under Oklahoma law do not qualify as violent felonies for sentence enhancement under the federal Armed Career Criminal Act (“ACCA”).

Raymond Hamilton was convicted of possession of a firearm after a felony conviction. He was sentenced to ...

New Jersey Supreme Court Holds 2014 Amendment to Megan’s Law Violates Ex Post Facto Clause

by Dale Chappell

The Supreme Court of New Jersey held that a 2014 amendment to the Violent Predator Incapacitation Act (“VPIA”), part of Megan’s Law, which applied to defendants who had violated their community supervision for life (“CSL”), violated the Ex Post Facto Clauses of the U.S. and New Jersey ...

NY Court of Appeals Affirms Dismissal of DWI for Improper Breathalyzer Refusal Warning

by Dale Chappell

The Court of Appeals of New York found that a driver’s eventual consent to a breathalyzer test was “coerced” and involuntary after police waited more than two hours to ask him to consent to the test. The Court held that the officer’s warning that his refusal could ...

Texas Court of Criminal Appeals Holds Sua Sponte Jury Instruction on Self-Defense Also Applies to Lesser-Included Charges

by Dale Chappell

A sua sponte jury instruction on self-defense for a murder charge applied equally to the lesser-included charge, and a judge’s failure to inform the jury that it could acquit even the lesser charge was “egregious” error requiring reversal, the of Texas Court of Criminal Appeals (“CCA”) held. ...

Seventh Circuit Affirms Order Granting New Trial Due to Newly Discovered Evidence

by Christopher Zoukis

The United States Court of Appeals for the Seventh Circuit affirmed a district court’s ruling that a criminal defendant should get a new trial because an audio recording that was favorable and material to the defense was discovered after trial.

Daniel Ballard took out a $280,000 construction ...

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 ...

Kentucky Supreme Court Tosses Evidence Holding Dog Sniff of Nervous Driver with Prior Drug Charges was Unreasonable

by Dale Chappell

The Supreme Court of Kentucky held that a drug-dog sniff based on the nervousness of the driver who had prior drug charges (but not convictions) was an unreasonable search under the Fourth Amendment, requiring suppression of the evidence found in the search.

“This opinion is not for ...

Archaic Disciplinary System Allows Chicago Police to Delay Punishment

by David Reutter

The Chicago Police Department (“CPD”) has endured criticism for officer misconduct. An investigation by ProPublica Illinois and the Chicago Tribune found that the city’s archaic system for disciplining officers allows it to avoid or long delay discipline, allowing officers who should be off the streets to be ...

$28.1 Million Jury Verdict for Wrongful Convictions Upheld by 8th Circuit

by Kevin Bliss

The U.S. Court of Appeals for the Eighth Circuit affirmed a jury’s verdict that awarded six wrongfully convicted individuals approximately $28.1 million in connection with their 42 U.S.C. § 1983 claims and parallel conspiracy claims under 42 U.S.C. § 1985 against Gage County, Nebraska; Deputy Wayne Price; ...

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

by Steve Horn

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

ACLU Questions Trade Secrets Protecting DNA Testing Algorithms

by Dale Chappell

DNA testing can be flawed, often in complex ways. However, courts have held that a defendant fighting for his life in court cannot verify if the DNA being used against him was properly tested, because this would require disclosure of the protected trade secrets of the company ...

Study Indicates Link Between Officer Fatigue and Public Complaints

by Betty Nelander

Nighttime police encounters tend to be more unsettling than those that occur during the day, a new study confirms.

Public complaints against cops rise when they work the night shift, a time when they are more likely to be fatigued. Eighty-six percent of public complaints against the ...

Many Sheriffs Tempted by Lack of Oversight or Fiscal Accountability

by Matt Clarke

It is a perfect storm of temptation. Many sheriffs in America have little oversight, independent sources of revenue with little fiscal accountability, low salaries, and a lot of power. This leads some of them to pocket funds intended for other purposes.

Some Alabama sheriffs have become examples ...

11th Circuit Rules Immigration Judges are United States Judges for Purposes of 18 U.S.C. § 115(a)(1)(B)

by David Reutter

In an issue of first impression nationally, the U.S. Court of Appeals for the Eleventh Circuit held that an immigration judge is a “United States judge” within the meaning of 18 U.S.C. § 115 (a)(1)(B), which makes it a crime to, among other things, assault, kidnap, or ...

Fired Director of New York’s Criminal Forensic Science Division Alleges ‘Catastrophic’ DNA Errors

by Christopher Zoukis

The former director of forensic science at the New York Department of Criminal Justice Services (“DCJS”) said the Office of Forensic Science (“OFS”) made three “catastrophic” DNA identification errors and falsified a certification document in a fourth case.

The claims were made by Brian Gestring, a member ...

Iowa Supreme Court Announces Greater Privacy Protections Under State Constitution for Impounded Vehicles Than Provided by Fourth Amendment

by Richard Resch

The Supreme Court of Iowa announced a stricter legal framework for warrantless inventory searches and seizures of vehicles being impounded under the Iowa Constitution than required by the U.S. Supreme Court under its recent case law interpreting the Fourth Amendment.

On October 30, 2015, police pulled Bion ...

New York, Faced With Millions in Payouts for Prosecutorial Misconduct, Becomes First State to Create Oversight Commission

by Derek Gilna

New York Governor Mario Cuomo has signed a bill that many hope will rein in prosecutorial misconduct. New York, with 250 exonerations since 1989, has paid out millions of dollars in settlements. In an attempt to address this problem, New York assemblymen in June 2018, passed a ...

Houston Forces Parolees out of City Under New Rule

A new ordinance passed by the Houston, Texas, city council requiring housing for parolees to be at least 1,000 feet from any park, school, day care, or other re-entry housing has effectively pushed parolees outside the city.

When asked for a public safety rationale by the Texas Criminal Justice Coalition, ...

From the Big Box to the Big House: Walmart Helps Tennessee Prosecutors Felonize Shoplifting

by Matt Clarke

Across the country, retailers’ associations are lobbying legislatures to stiffen the punishment for retail theft, allegedly to prevent “organized retail crime,” a fuzzy term often used to describe repeated shoplifting. In Tennessee, Walmart and local prosecutors have taken advantage of a broadly worded burglary statute to felonize ...

Federal Judge Extends Stay of Executions in Louisiana

by Betty Nelander

Louisiana’s 71 death-row prisoners are in limbo after a federal judge in that state ordered that a stay of executions be extended at least until July 18, 2019.

The order by U.S. District Judge Shelly Dick was requested by the state. To continue with litigation challenging the ...

Idaho Supreme Court Rules Dead-Body Reporting Statute Unconstitutional As Applied to Defendant

by Richard Resch

The Supreme Court of Idaho held that prosecution of the defendant under a state statute that imposes a duty on anyone who discovers or has custody of a body to promptly notify authorities, based on the facts of this case, would violate the defendant’s Fifth Amendment privilege ...

Louisiana Sheriffs’ Association Backpedals on Its Pre-Trial Detainee Figures

by Derek Gilna

The Louisiana Sheriffs’ Association was forced to backtrack from an April 19, 2018, statement that Louisiana jails hold about 1,300 individuals in jail over four years without standing trial and 70 for more than five years.

One week later the association stated that the figure is only ...

Civil Forfeiture Often Focuses on Profit Instead of Public Safety

When Lewis Cain was roused from sleep by police officers in his home demanding the keys to his BMW, he objected. Still, cops drove away in his car.

“I have the highest respect for law enforcement, but the Fourth Amendment has to mean something,” said the disabled Vietnam veteran. “Police ...

1st Circuit: No Protective Sweep Where Identified Suspects Already in Custody at Time of Warrantless Search

by David Reutter

The United States Court of Appeals for the First Circuit reversed the armed bank-robbery conviction of Virgilio Diaz-Jimenez (“Diaz”), holding the warrantless search of Diaz’s home did not fit within the protective sweep or voluntary consent exceptions under the Fourth Amendment and was thus unconstitutional.

Diaz and ...

$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 ...

Hair Analysis a Useful but Not Foolproof Forensic Tool

by Derek Gilna

Richard Paul, a Bournemouth University, England, chemistry professor and specialist in toxicological hair analysis, maintains that although the relatively new technology can be useful, it is far from foolproof. He cautions that even though the High Court of the United Kingdom has accepted the results of hair ...

Your Papers, May I See Your Papers?

by Christopher Zoukis

The United States is one of the only nations left in the world that does not have a national ID card. It also is one of the last remaining places where an individual does not have to show an ID to the police, except in certain circumstances. ...

Federal Judge Effectively Ends Albuquerque’s Civil Asset Forfeiture Program as Too Focused on Revenue and Not on Due Process

by Derek Gilna

A federal judge in a July 28, 2018, ruling has effectively ended Albuquerque, New Mexico’s civil asset forfeiture program, finding that, “there is a ‘realistic possibility’ that forfeiture officials’ judgment will be distorted by the prospect of institutional gain—the more revenues they raise, the more revenues they ...

New Jersey Supreme Court Holds Inventory Search May Not Serve as Ruse for Investigatory Search

by Dale Chappell

The Supreme Court of New Jersey held that police may not use an inventory search as a “ruse” to conduct a broader search to support an arrest, finding that police did not have a valid reason to conduct such a search under the facts present in the ...

Hawaii Supreme Court Vacates Conviction Because Defendant’s Waiver of Right to Testify Deficient Under State’s Tachibana Colloquy Requirement

by David Reutter

The Supreme Court of Hawaii reversed a DUI conviction because the trial court failed to determine whether the defendant’s “waiver of the right to testify, was voluntarily, intelligently, and knowingly made.”

Before the Supreme Court was the certiorari petition of Ritalynn Moss Celestine. She was arrested on ...

Louisiana Supreme Court Holds Counsel’s Failure to Challenge ‘Stark Contrasts’ in Witness ID and Defendant’s Appearance Constituted IAC

by Dale Chappell

Counsel’s failure to challenge the “stark contrasts” between witness descriptions of a suspect and the defendant clearly affected the jury’s conclusion, the Supreme Court of Louisiana held, remanding for a new trial.

With the help of law enforcement, two robbery victims identified Leroy Jackson as one of ...

Sixth Circuit: Procedural Error and Plain Error for Judge to ‘Surprise’ Defendant and Impose an Upward Variance

This drug sentencing case is noted for its holding that a sentence imposed by the district court (Judge John Adams of the N.D.Ohio) was procedurally unreasonable because the sentence had been doubled above the Guideline Sentencing Range (GSR) based in large part on the district court’s reliance on a local ...

ICE Utilizes Military-Style Shock Tactics to Round up Immigrants

The U.S. Immigration and Customs Enforcement’s (“ICE”) military-style raid, where 100 armed agents stormed a store in Ohio to round up suspected illegal immigrants, brought the war on immigrants to a new level, immigrant rights activists charge.

While large-scale immigration raids are not uncommon, the sheer size of the force ...

Private DNA Lab Under Fire for Faulty Analysis

by Christopher Zoukis

National Medical Services, Inc. (“NMS”), a Pennsylvania-based forensics and medical lab, was cited in a recent report by the Texas Forensic Science Commission (“TFSC”) for improperly overamplifying DNA during work for a defense attorney. The “overblown” DNA led NMS scientists to conclude that the sample contained more ...

Sixth Circuit Rules Relying on Search Warrant Based on ‘Bare Bones’ Affidavit Objectively Unreasonable, Grants Motion to Suppress

by David Reutter

The U.S. Court of Appeals for the Sixth Circuit held a search warrant failed to establish a fair probability that drugs would be found at the searched residence on the date of the search.

Before the Court was the appeal of Tyrone Christian, who was convicted by ...

Washington Supreme Court Strikes Down Pornography Prohibition as Unconstitutionally Vague

by Christopher Zoukis

The Supreme Court of Washington held a community custody condition preventing a probationer from possessing or accessing pornography unconstitutionally vague under the First Amendment because the prohibition also extended to works of art, books, advertisements, movies, and television shows. The May 10, 2018, opinion ruled that though ...

Victims’ Rights Laws a Threat to Due Process

“Marsy’s Law,” an effort to afford victims equal rights as those accused, might seem like a good idea at first blush, but a deeper look shows it is poorly drafted and actually threatens existing constitutional safeguards.

Victims’ rights and defendants’ rights are not the same and cannot be “equal.” Victims’ ...

Federal Court Suppresses Evidence Where Consent to Search Vehicle Obtained Via Google Translate

by Christopher Zoukis

A federal judge in the United States District Court for the District of Kansas threw out evidence found during a warrantless search of a vehicle when “consent” was obtained from a non-English speaker via Google Translate. The June 4, 2018, opinion found that the defendant did not ...

News in Brief

Alabama: The ruthless jailing of poor people who can’t pay minor fines has not gone unnoticed. The Lawyers’ Committee for Civil Rights Under Law filed on Aug. 9, 2018, “a class-action suit representing six named clients and others against Arkansas state District Judge Mark Derrick, accusing him of violating citizens’ ...

 

 

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