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Prisoner Education Guide

Criminal Legal News: October, 2018

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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. Eight Death Row Prisoners Opt for Untested Nitrogen Gas Over Inhumane Lethal Injection (p 16)
  9. Kentucky Supreme Court Overrules Flawed Brindley Opinion and Announces Commonwealth Cannot Appeal Judgment of Acquittal (p 16)
  10. California Court of Appeal Holds Box Cutter Not ‘Inherently’ Deadly Weapon (p 17)
  11. New Jersey Supreme Court Holds 2014 Amendment to Megan’s Law Violates Ex Post Facto Clause (p 18)
  12. 10th Circuit: Oklahoma’s Second-Degree Burglary Not an ACCA Qualifying Offense (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. 11th Circuit Rules Immigration Judges are United States Judges for Purposes of 18 U.S.C. § 115(a)(1)(B) (p 26)
  24. Many Sheriffs Tempted by Lack of Oversight or Fiscal Accountability (p 26)
  25. Fired Director of New York’s Criminal Forensic Science Division Alleges ‘Catastrophic’ DNA Errors (p 27)
  26. New York, Faced With Millions in Payouts for Prosecutorial Misconduct, Becomes First State to Create Oversight Commission (p 28)
  27. Iowa Supreme Court Announces Greater Privacy Protections Under State Constitution for Impounded Vehicles Than Provided by Fourth Amendment (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. $9 Million Settlement in Baltimore Wrongful Conviction Case (p 32)
  35. 1st Circuit: No Protective Sweep Where Identified Suspects Already in Custody at Time of Warrantless Search (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. New Jersey Supreme Court Holds Inventory Search May Not Serve as Ruse for Investigatory Search (p 34)
  39. Federal Judge Effectively Ends Albuquerque’s Civil Asset Forfeiture Program as Too Focused on Revenue and Not on Due Process (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. Sixth Circuit: Procedural Error and Plain Error for Judge to ‘Surprise’ Defendant and Impose an Upward Variance (p 36)
  42. Louisiana Supreme Court Holds Counsel’s Failure to Challenge ‘Stark Contrasts’ in Witness ID and Defendant’s Appearance Constituted IAC (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. Federal Court Suppresses Evidence Where Consent to Search Vehicle Obtained Via Google Translate (p 40)
  48. Victims’ Rights Laws a Threat to Due Process (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 and implicated several other men in the crime.

Investigators were able to obtain confessions from three of the alleged accomplices. Although they all told wildly different versions of what happened, Eric Wilson, Joe Dick Jr., and Derek Tice were arrested and charged, along with Williams, for the rape and murder of Moore-Bosko. Williams and Dick pleaded guilty in order to avoid the death penalty. Tice was convicted of murder, and Wilson was convicted of rape.

Prosecutors obtained all four convictions solely on the strength of the sailors’ confessions. There was no physical evidence tying any of the men to the crime scene. Instead, the physical evidence that was obtained tended to rule out all four men as suspects. Additionally, investigators learned that another man, serial rapist Omar Ballard, had written a letter to a friend in which he confessed to committing the crime, alone. Tests of DNA found at ...

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 like gang thugs to “blend in” with the neighborhoods they stake out.

A recent analysis by The Intercept used data from the Fatal Encounters project to show that a relatively small group, plainclothes officers, were involved in nearly one-third of New York City’s fatal police shootings since 2000. The 174 fatal shootings included 54 involving only plainclothes officers, 41 involving only uniformed police officers, 11 involving both, and 68 in which it is unknown whether the involved officers were plainclothes or uniformed.

The analysis was complicated by the fact that the NYPD refers to both officers working undercover and those working out-of-uniform as “plainclothes officers.” Further, the NYPD does not release comprehensive information on police shooting incidents.

The NYPD also does not disclose the number of its approximately 20,000 officers who work in its plainclothes units. The Intercept used information provided by retired NYPD sergeant and John Jay ...

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 pre-Carpenter and post-Carpenter terms. It will be seen as being as important as Olmstead and Katz in the overall arc of technological privacy.

I hope to develop the argument that Carpenter is as important as Katz across two or three articles at Just Security, but let me begin with my overall big picture: The holding and reasoning of Carpenter is breathtakingly broad and will be applied far beyond the facts of this case. (For a detailed overview of the facts and five opinions of this case, see this blog post written by my star student and recent Georgetown graduate, Sabrina McCubbin.)

Carpenter holds that the police may not collect historical cell-site location information (CSLI) from a cellphone provider without a warrant. Footnote three (get used to a lot of scholarly commentary about Carpenter, footnote three!) restricts the holding, for now, to seven days of collection. I’ll write later ...

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 upheld the broad protection qualified immunity offers law enforcement. The Court, once again, held that qualified immunity “gives ample room for mistaken judgments by protecting all but the plainly incompetent [officers] or those who knowingly violate the law.” Kisela v. Hughes, 138 S. Ct. 1148 (2018). It is a high standard, lawyers admit, and no defined criteria exist.

Police again can thank the courts for decisions that give them a loophole to get out of lawsuits. Say police use excessive force and crush a man’s pelvis during an arrest, as in the case of Brandon Anderson, who had his pelvis crushed by Bristol, Tennessee, police after he gave them a fake name. There’s an easy and virtually foolproof way to ensure he cannot sue—charge him with resisting arrest, even if he didn’t do so. When Anderson sued, police invoked the “Heck Rule,” which bars a criminal defendant ...

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 joint trial of Lawrence Parker and Mark Nonni for crimes related to burglary, the jury sent three substantive notes to the court, requesting specific information about the case. When everyone reconvened in court, the judge raised the issue of the three notes and said the court would address each one in turn. After resolving the first note, the court broke for lunch and said it would address the other notes after lunch. The jury, however, reached a verdict during lunch, ending the trial. The two remaining notes were never mentioned.

After the Appellate Division affirmed their convictions, Parker and Nonni were granted leave to appeal to the Court of Appeals.

Raised for the first time before the Court of Appeals, Parker and Nonni argued that the trial court’s failure to provide them with notice of the content of the other notes amounted to a mode of proceedings error requiring reversal ...

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 facts.

“What kind of system of justice do we have if we permit actually innocent people to remain in prison?” asked Justice David Wiggins for the Court, before overturning its prior cases that prevented freestanding actual innocence claims to be raised in a postconviction-relief action. “It is time that we refuse to perpetuate a system of justice that allows actually innocent people to remain in prison.”

Jacob Schmidt pleaded guilty in 2007 to charges of assault with intent to commit sexual abuse and incest, under a plea agreement, after he was accused of sexual conduct with a minor relative. The same day, the district court, finding that Schmidt’s plea was knowing and voluntary, sentenced him to no more than seven years in prison.

In 2014, Schmidt filed an application for postconviction relief based on the alleged victim’s recantation of his story to police, claiming, “I was not guilty ...

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 of any major city in the United States. On his third day in office, Krasner fired 31 career prosecutors and told the rest to stop insisting on cash bail for minor offenses, such as possessing marijuana. He also released over 50 people being held on marijuana possession charges and announced a new drug policy: As long as people are not going to sell the drugs they possess, his office will no longer file charges.

In 2016, philanthropist George Soros bankrolled a dozen reform candidates for prosecutor positions across the country. Ten won. Since then, several major city prosecutors have chosen to use prosecutorial discretion to reform the system from within. Combined with prosecutors, like former Dallas County DA Craig Watkins, who created a “conviction integrity unit” to investigate wrongful convictions, and the late Ken Thompson, who became New York’s first black DA in 2014 and exonerated 21 people in the ...

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 10, 2018, the state attorney general, along with the prisoners and their lawyers, filed a joint motion to dismiss the litigation.

No state has used nitrogen gas inhalation as a means of execution, which would cut off oxygen in the blood stream and asphyxiate the prisoner. And there is no protocol in place for it, something that would likely face legal challenges.

“The plaintiffs in this case, and anyone else who elected the new method, cannot now be executed by lethal injection,” said John Palombi, an attorney with the Federal Defenders Program who is representing prisoners in the lawsuit, as quoted in the New York Post.

The eight prisoners, however, “did not waive their rights to eventually challenge the humaneness of execution by nitrogen and urged the state to make the protocol public when it is developed.”

And, so far, only Alabama, Mississippi, and Oklahoma have authorized nitrogen ...

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 sex offender registry after law enforcement was unable to locate him at the homeless shelter he listed as his residence. Maupin’s name was listed only two times in a month’s span on the shelter’s sign-in sheet. The Commonwealth convinced a jury that this proved Maupin was not at his approved residence, and he was sentenced to 10 years in prison.

Maupin moved for a new trial or for a judgment of acquittal. The trial court granted Maupin’s motion for acquittal, ruling that the Commonwealth’s proof was insufficient because the sign-in sheet was equivocal at best and that the officer’s single attempt to locate him did not justify a criminal conviction. The Commonwealth appealed, and a divided panel of the Court of Appeals reinstated Maupin’s conviction. The Kentucky Supreme Court granted Maupin discretionary review.

Section 115 of the Kentucky Constitution provides that “in all cases, civil or criminal, there shall be ...

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 Yazan Aledamat pulled a box cutter and said, “I’ll kill you,” during an argument. The question later became whether the box cutter was “inherently” a deadly weapon to support his conviction for assault with a deadly weapon, after the jury found him guilty based on the superior court’s instruction on what constitutes a “deadly weapon” as a matter of law. Aledamat appealed his conviction.

A “deadly weapon,” as a matter of law, is defined as an object that is deadly to others in its “ordinary use for which it is designed” or when used in a manner “capable of and likely to produce death.” Because a box cutter is not designed to cut people in its ordinary use, the Court of Appeal ruled that it is “not an inherently dangerous or deadly instrument as a matter of law.” The superior court’s jury instruction was a ...

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 Constitutions. That’s because a violation of CSL is not a new offense but relates back to the original offense.

When four defendants in separate, unrelated cases violated their conditions of CSL, the four were charged under the 2014 amendment to the VPIA. That increased their violations from fourth-degree to third-degree offenses and would convert their CSL to parole supervision for life (“PSL”), resulting in harsher consequences than the law provided at the time of their criminal conduct a decade ago. The trial courts presiding over the four separate cases tossed the indictments, holding that imposing the harsher punishments under the 2014 amendment violated the Ex Post Facto clause. The State appealed, but the Appellate Division affirmed. The New Jersey Supreme Court granted the State’s petition for certification and consolidated the four cases for appeal.

Under CSL, those convicted of sex-based offenses are subject to several conditions—more than 20 in ...

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 190 months’ imprisonment under ACCA, based in part on three second-degree burglary convictions from Oklahoma.

Hamilton moved to vacate his sentence under 28 U.S.C. § 2255, arguing the district court applied the mandatory minimum based on the ACCA’s unconstitutional residual clause. The United States appealed after the district court granted the petition.

There was no dispute that Hamilton has a 1978 Oklahoma conviction for robbery with a firearm and a 1991 conviction for assault with deadly weapon that qualify as violent felonies under ACCA. The United States needed to identify one more violent felony conviction to trigger ACCA’s mandatory minimum, so it pointed to Hamilton’s second-degree burglary convictions in Oklahoma.

To qualify as a violent felony under ACCA, a violent felony must involve a violent felony under ACCA’s Elements Clause, the Enumerated Offense Clause, or the Residual Clause. The U.S. Supreme Court in Johnson v. United States ...

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 be used against him in court was improper under the law, and that his consent based on that warning required suppression of the evidence.

Donald Odum was arrested for DWI and taken to the police station. Over two hours later, he was asked to submit to a breathalyzer test but declined. The officer warned Odum that if he refused to take a breath test, it would be used as evidence against him in court. Odum then agreed, based on that warning, and the result showed his 0.09 percent alcohol level was just over the legal limit.

He moved to suppress the test results, and the criminal court ruled that because Odum had refused but then consented to the breathalyzer more than two hours after his arrest based on the officer’s erroneous statement of the law, the evidence had to be suppressed.

The State appealed, and the intermediate appellate court ...

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.

The trial court instructed the jury that it could acquit Adrian Mendez of murder if it found that he used deadly force to protect himself in self-defense. Mendez had argued that he stabbed to death a man who was arguing with him when he thought he was reaching for a gun. The court’s instruction to the jury about the self-defense theory was not at Mendez’s request but on the court’s own volition. The jury acquitted Mendez of murder, but it convicted him of the lesser-included charge of aggravated assault. Sentenced to seven years in prison, Mendez appealed, and the First Court of Appeals held that the trial court was required to instruct the jury that the self-defense theory also applied to the lesser-included charge, not just to the murder charge. The State petitioned the CCA, which agreed to hear the State’s appeal.

Texas Code of Criminal Procedure Article 36.14 ...

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 loan from State Bank of Herscher (“SBH”) in order to build a house at 3013 Stone Fence Drive in Kankakee, Illinois (the “Stone Fence property”). Ballard soon realized that he needed more money for the project and requested an additional $90,000 from SBH. Due to insufficient equity, the bank would only lend him another $20,000.

Ballard then sought construction loans on two other properties in Bradley, Illinois (the “North Center properties”) in order to cover the difference. In order to obtain the loans, he signed sworn contractor’s statements. In total, Ballard obtained $188,000 in loans for the North Center properties, all of which was used to finish the Stone Fence property.

When a bank employee discovered that Ballard was using the North Center money to complete Stone Fence, the authorities were notified. Ballard admitted to the president of SBH that he misrepresented his work on the ...

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 ...

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 Rakim Moberly,” the Court made clear. “We render this opinion for the untold numbers of innocent Kentucky citizens who have ‘criminal charges’ and may become nervous and sweaty and look around when confronted by police.”

Moberly, who was convicted of drug and gun possession after a 3 a.m. traffic stop, appealed the denial of his motion to suppress the evidence obtained after the police called in a drug dog based on Moberly’s nervous appearance and his prior drug charges. Moberly argued on appeal that the dog sniff was not reasonably connected to the legitimate traffic stop for not having a valid registration. The Commonwealth argued that his nervous behavior allowed the police to further detain Moberly and search his vehicle. Ultimately, the Kentucky Supreme Court agreed with Moberly and tossed the evidence.

In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the U.S. Supreme Court ...

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 on patrol.

In one case, it took 11 years for an officer to be disciplined. That case involved CPD officer William Levigne. He told investigators that on an October 2006 evening, as he was driving home, that Walter Whitehead, who was driving his 16-year-old son Brandon home from work, cut him off.

The Whiteheads said Levigne overtook them in his Monte Carlo as he pointed his gun at them, then ordered them out of their car at a stop light, forced them out of the car, and handcuffed Walter.

Levigne called 911, asking for help from “a brother in blue,” as he blocked traffic. “I’ve get two offenders in custody—tried to kill me here!”

As Levigne was not in uniform, Brandon was terrified and called 911, too. “Can you hear him?” Brandon asked the operator. She could. “Off the (expletive) phone!” Levigne yelled.

The Whiteheads filed ...

$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; Deputy Burdette Searcey, and Sheriff Jerry DeWitt (collectively, “Appellants”).

The jury concluded that they conducted a reckless investigation, manufactured false evidence, and coerced confessions to convict Joseph White, Ada JoAnn Taylor, Thomas Winslow, Deborah Shelden, Kathleen Gonzalez, and James Dean (collectively, “Appellees”) of the 1985 rape and murder of Helen Wilson.

The Appellees were exonerated by DNA evidence in 2008. That same year, they filed suit against Gage County, Price, Searcy, and DeWitt. They argued that, under DeWitt’s authority, Searcy purposely pursued their conviction even when physical evidence and individual statements indicated that none of the Appellees were involved in any way with the crime. They also claimed that Price coerced false testimony from them under the guise of therapy.

Blood and semen samples were found at the crime scene, which did not match any of the Appellees. Statements were taken from each of ...

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 attorney general in 2010, Schneiderman’s rising-star political career came crashing down after The New Yorker magazine revealed a pattern of both physical and emotional abuse toward at least four romantic partners in New York City. Schneiderman, who resigned just hours after the article went public, might potentially face criminal charges and is under investigation by a special prosecutor, Nassau County District Attorney Madeline Singas. In a conversation with The New Yorker, one of his accusers revealed that Schneiderman told her, “I am the law.” In contrast to his personal behavior, Schneiderman’s work showed a history of advocacy on women’s issues and law enforcement.

Strangulation Prevention Act

As a state senator in 2010, for example, Schneiderman introduced and sponsored the Strangulation Prevention Act (S.6987), which became law. But two women told The New Yorker that, in fact, Schneiderman had physically abused them by slapping and choking them.

“They did ...

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 whose testing algorithms are being used.

The companies that make DNA testing algorithms, such as STRmix and True Allele, don’t have to reveal how their products actually test DNA, and they don’t have to prove that their testing methods are reliable by allowing a defendant to verify the accuracy of the testing methods. Instead, if the company promises that its system is reliable, its word in court is good enough.

The American Civil Liberties Union (“ACLU”) says this is wrong. If defendants cannot confront the witnesses and evidence against them in court, the ACLU says this may violate a defendant’s constitutional right to be able to challenge the evidence against him.

Take Florencio Dominguez, for instance. He was convicted of murder in California, but the DNA results later were found to be inconclusive. The State tried him again, for a third time, but this time using STRmix to test the ...

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 officers were documented on a night shift and 58 percent “after an officer had worked a consecutive night shift the previous day,” the study found.

Blame it on lack of sleep, noted researchers from Washington State University and Central Queensland University at the 32nd annual meeting of the Associated Professional Sleep Societies in June. Their conclusions were based on data from a U.S. Department of Justice-funded study in which four police departments reported on 32,712 shifts worked by 379 police officers.

The data revealed that officers tended to be more fatigued working nights. Complaints climbed when the officers worked back-to-back night shifts or worked court hours between night shifts. The daytime court hours were, in fact, times that night shift officers should have been sleeping or at least resting.

As fatigue increased, odds of a citizen complaint increased. Similarly, as predicted sleepiness levels increased, odds of a ...

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 murder or attempt or threaten to do so with respect to certain federal officials, including United States judges.

That conclusion came in an appeal brought by Delroy McLean, who was sentenced to 41 months in prison after a jury found him guilty of “threatening to assault” an immigration judge “with the intent to impede, intimidate, or interfere” with that judge “while engaged in the performance of official duties” during a bond hearing in violation of § 115 (a)(1)(B).

At trial and on appeal, McLean argued immigration judges are not “United States judges” for purposes of the statute because they are employees of the Department of Justice who are appointed by and subject to the supervision of the Attorney General.

The Eleventh Circuit rejected McLean’s argument. It started with the definition in § 115 (C)(3), which provides that “‘United States judge’ means any ...

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 of what not to do with the food fund for jail prisoners. The state pays the sheriffs a paltry $1.75 per prisoner per day for food. However, there was a tradition among those poorly paid public servants of skimping on food and pocketing the savings.

In 2001, a judge ruled that the jail food in Morgan County, Alabama, was “inadequate in amount and unsanitary in presentation” when ordering the sheriff to serve nutritionally adequate meals.

A few years later, a different sheriff in the same county served two meals a day of corn dogs bought by the truckload at a discount, pocketing $212,000 from the food fund over three years. That led the judge to order that all food fund money be spent on food. The very next sheriff, Ana Franklin, took $160,000 from the food fund. Franklin eventually had to reimburse the misappropriated funds and pay ...

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 of the state’s Commission on Forensic Science who was recently fired from his position as head of OFS after being accused of sexual harassment. He said the errors exposed a “huge problem” with the forensic science work being done for the DCJS.

“It is clear that all of the components of the Rube Goldberg machine that is the New York State DNA databank must have significant oversight and must be transparent to avoid catastrophe,” Gestring said. “Four catastrophic failures in one year,” he continued. “Would you fly that airline?”

The Department of Criminal Justice Services strongly disputed Gestring’s claim. “This missive by a disgruntled former employee misrepresents the facts,” said spokeswoman Janine Kava. “The Division is unaware of any instances in which an incorrect DNA identification has resulted in a wrongful arrest or prosecution. Mr. Gestring also fails to mention that DCJS has internal processes in ...

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 bill calling for an independent public commission empowered to investigate prosecutorial misconduct.

The State Commission on Prosecutorial Conduct will be composed of 11 members, with two appointed by the governor, three by the chief judge of the state, and the balance by legislators of both parties. Their findings will be made public. It’s the first such state commission on prosecutorial conduct in the nation.

The commission will be empowered to initiate investigations and issue subpoenas. If misconduct is found, the commission will recommend sanctions ranging from a warning to termination. The governor will then have the option of imposing or disregarding the recommendation.

Part of New York’s payouts included $13 million to Jabbar Collins, who spent 16 years in prison for a murder he didn’t commit. However, for the prosecutor involved in that case, there were no consequences. Michael Vecchione, a Brooklyn prosecutor now found to have concealed exculpatory evidence ...

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 Ingram over because his vehicle’s license plate was not illuminated as required by law. During the traffic stop, the officer discovered that the vehicle’s registration had expired. The officer decided to impound the vehicle, but he did not arrest Ingram.

The vehicle was going to be towed. Another officer arrived and inventoried the contents of the vehicle without a warrant. During the inventory, the officer discovered a cloth bag on the floor and opened it. A glass pipe containing a gram of meth was inside. Ingram was arrested and charged with possession of meth and drug paraphernalia.

Ingram filed a motion to suppress based on the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Iowa Constitution. He argued that the inventory was merely a pretext to search his vehicle without a warrant. The district court denied the motion, ruling that inventory searches are ...

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, the city gave none, offered no evidence to support the new rule, and largely ignored comments and questions before passing the new rule. “It was orchestrated from the start that it was going to pass regardless,” Jay Jenkins, an attorney with the coalition, said.

Each year, around 14,000 former prisoners return to Harris County, including Houston. “For re-entry housing to be successful, it has to be centrally located, has to be located near public transportation, has to be located near health care with access to food,” Jenkins said. The 1,000-foot rule is setting up parolees to fail, he said.

“There are few outcomes more detrimental to public safety than further limiting the housing options for people who already face barriers to housing and employment,” Criminal District Court Judge Kristin M. Guiney wrote to the city council, opposing the rule.

Natalia Cornelio, criminal justice reform ...

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 what would otherwise be misdemeanor retail theft.

The associations of retailers are pushing for similar language in California and several other states.

Curtis Lawson ran afoul of the Tennessee statute when he “returned” $39.57 worth of products he had not purchased, using a receipt for a purchase he made earlier at a Knoxville, Walmart.

In Tennessee, shoplifting under $1,000 is a misdemeanor, but Lawson’s charges were upgraded to felony burglary after it was discovered that a different Walmart location had sent him a “Notification of Restriction from Property’’ after he was caught shoplifting there four years earlier. The notification “evicted” Lawson, informing him he was “no longer allowed on property owned by Wal-Mart Stores Inc. or in any area subject to Wal-Mart Stores Inc.’s control,” including “all retail locations or subsidiaries” forever.

Tennessee law defines burglary as “unlawfully and knowingly entering a building without the ...

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 state’s lethal injection protocol, said state’s attorney Jeffrey Cody, would be “a waste of resources and time” because “facts and issues involved in this proceeding continue to be in a fluid state.”

That protocol calls for a one-drug injection (pentobarbital) and a two-drug backup combo (the painkiller hydromorphone and the sedative midazolam), but the drugs are not in the state inventory for executions. The state hasn’t been able to acquire the drugs because manufacturers don’t want to sell them for the procedure. And there is no legislation for alternative types of execution.

State Attorney General Jeff Landry, a Republican, blames Gov. John Bel Edwards, a Democrat, for foot-dragging on the issue and points out that Texas carried out seven executions the first six months of the year. There were eight through July 17.

“Edwards countered that Landry is using the state’s difficulty with executions to score political points ...

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 against self-incrimination. As such, the Court affirmed the district court’s decision to dismiss the charge.

In late 2015, Kimberly Vezina died of an overdose at a residence well known for drug activity. Laura Akins and another person were ordered to dispose of the body at a lake house owned by Akins’ relative. Akins eventually dumped the body in the water, but it was discovered by fishermen about three weeks later. Investigators determined that Akins was involved with dumping the body and placed her under arrest.

Akins was charged under I.C. § 19-4301A(3), failure to notify of a death. She moved for dismissal, arguing that her prosecution under the statute violated her Fifth Amendment privilege against self-incrimination. Following a hearing, the district court agreed with her, reasoning that compliance with the statute under these facts would effectively punish her for failing to incriminate herself. The court entered an order ...

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 85 for more than four years. Apparently, the association revised the figure after contacting Louisiana jails, perhaps after the original figure became public.

In a state known in criminal justice circles as one in dire need of serious reform of both its jails and courtrooms, this strange reduction in prisoner counts is yet another example of the need for change. Apparently, the state of Louisiana does not collect data on how long its prisoners have languished in its correctional institutions without getting their day in court.

According to Michael Ranatza, executive director of the association: “I think the number is actually higher.” Ranatza made those remarks on April 9, at a Louisiana House Appropriations budget hearing, complaining that sheriffs needed more funding because of the high prisoner counts in county jails.

Ranatza went on to say at the same hearing that, “I want you to understand that there ...

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 officers can’t just take people’s property for no reason.”

But to the amazement of many people, they can. Police seized Lewis’ car under Tennessee’s civil asset forfeiture laws, under which cops can take a person’s property if they believe it is connected to illegal activity—often without even pressing criminal charges. Police said Lewis’ son was driving around in the car making drug deals. It was Lewis’ burden to prove the police were wrong.

The ACLU of Tennessee filed a petition on behalf of Lewis with the Department of Safety, and the State agreed to return his car.

To make sure this did not happen to someone else, the ACLU filed a federal lawsuit claiming police violated Lewis’ constitutional rights.

When law enforcement is focused on profit rather than public safety, they are not serving the public. Instead, the profit incentive drives police to abuse the civil asset forfeiture ...

$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 hearing the egregious facts of Owens’ wrongful conviction.

Colleen Williar was raped and murdered in 1988. 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 a ...

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 his co-defendant, Hector Serrano-Acevedo (“Serrano”), were charged with the armed robbery of the Oriental Bank in San Lorenzo, Puerto Rico, on June 17, 2013. The robbers fled the bank in a white van, which was later found alongside a road.

The FBI and an ICE Task Force assisted in the search for the two robbers. A confidential informant advised an ICE agent that he had been in contact with the robbers, who expected him to pick them up after they emerged from their hiding place in a nearby mountainous terrain after the police helicopter left.

That afternoon, the informant was notified by the robbers that they had left their hideout and did not need to be picked up. The informant supplied the robbers’ nicknames and cellphone numbers. With the cellphone information, law enforcement tracked the phones and located Diaz at his home.

A SWAT team was called, and Serrano pulled ...

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 analysis as accurate in some cases, tests can sometimes be skewed by something as commonly used as hair spray.

Unlike breathalyzers or blood tests, which give what essentially is a snapshot of the individual’s drug and alcohol levels for a period of time as short as several hours or perhaps a few days, human hair “stores” a record of all substances used over a period of months and might even show if you are stressed. And, Paul added, the level of accuracy has increased in recent years.

The hair analysis process first came to prominence as a forensic tool in 2008, where a mother who had been banned from consuming alcohol for a year in a child custody dispute had to produce a hair sample, which technicians claimed showed that she had, in fact, consumed alcohol during that period. The High Court, after reviewing the data, threw out the test ...

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. But, there is a de facto ID card in this country—the state-issued driver’s license. And, thanks to the 2005 Real ID Act, the formerly simple driver’s license is slowly becoming a privacy-flouting national ID card of its own kind.

Real ID requires states to implement minimum standards for driver’s licenses. Pursuant to the law, a state-issued driver’s license must have upgraded security features and provide the holder’s name, gender, date of birth, address, photograph, signature, and identification number. All of this information goes into a national identity system database.

Only 27 states are in compliance with Real ID requirements, however. This is because the federal mandate was not funded and because citizens and legislators alike in some states are not willing to contribute to a Big Brother-style national identity database. Indeed, legislatures in six states have passed laws prohibiting their states from complying with Real ID.

Civil liberties organizations such ...

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 case.

When Lori Hummel was asked to take a ride to the police station to clear up some unresolved traffic warrants, she agreed, after being told she would be released once finished. The cops lied. In reality, detectives wanted Hummel brought in as a suspect in a murder they were investigating. Detectives assured Hummel she would be let go in time to pick up her daughter from school. Hours later, she was still there, not allowed to leave.

Hummel said she wanted to call a lawyer. The detective said she was “technically” arrested because of the traffic warrants and could not leave, and he ignored her request for a lawyer.

At some point, a detective took Hummel’s purse, and she protested. The detective said she was “in custody” and began leaving with the purse. “Hopefully that $500 ain’t missing out of there,” she said before he left the room ...

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 can spend.”

U.S. District Court Judge James O. Browning’s ruling effectively blows a hole in city finances, stating that the practice “has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years.”

Unlike forfeiture proceedings in criminal cases, which deal with property used in the commission of a crime, civil forfeiture laws permit a municipality to seize property owned by citizens merely suspected of being connected to criminal activity, even if the owner isn’t charged with a crime. A 2016 lawsuit against the city, filed by the public interest law firm, Institute for Justice, alleged serious due process violations in the seizure of a car owned by Arlene Harjo, whose son allegedly drove her vehicle while under the influence of alcohol, without her ...

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 February 24, 2013, after a breathalyzer test revealed a .098 blood-alcohol level. Celestine pleaded not guilty to a charge of operating a vehicle under the influence of an intoxicant. Her case proceeded to a bench trial at which she was found guilty.

On appeal, Celestine argued it was an error to deny her motion to dismiss the breathalyzer test, and the district court violated her constitutional right not to testify when it failed to conduct a proper Tachibana colloquy. The Intermediate Court of Appeals affirmed the conviction.

In the Supreme Court, only the right not to testify issue was at issue.

The Court explained that under Hawaii law the fundamental right to testify (and not testify) is protected by safeguards established by the Hawaii Supreme Court in Tachibana v. State, 900 P.2d 1293 (Haw. 1995). According to the Court, “the trial court must advise the defendant of the ...

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 news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids. The article was presented to the parties by Judge Adams for the very first time at the sentencing hearing; and the defendant was not notified before the hearing that the district court planned to consider the article or the issues it addressed. Because that procedure denied the defendant a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was deemed to be both procedurally unreasonable and plain error.

Marcus Fleming was arrested in Ohio during a 2016 traffic stop after the police found 989 grams of cocaine in a knapsack on the rear floorboard of his car. Fleming subsequently pled guilty to one count of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Fleming’s ...

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 the men who robbed them. One witness said Jackson “looked a lot like” the robber, and another said he was not sure because “all black people look alike to him.” The details given by the witness to police described a man with a distinct hairline who was larger than Jackson. Jackson was not only smaller, but he was completely bald. Defense counsel ignored these discrepancies and never challenged the witness identifications in court. Jackson was convicted of robbery and sentenced to 50 years in prison. The court of appeal affirmed, and the Louisiana Supreme Court denied Jackson’s writ.

When Jackson filed for collateral review claiming ineffective assistance of counsel, the district court noted the problems with cross-racial identifications and found that Jackson’s counsel was ineffective for failing to challenge the witness identifications. Jackson was granted a new trial, but the court of appeal overturned the district court’s ruling, holding ...

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 used in the Ohio raid shocked even the most seasoned advocates, the ACLU said.

A man carrying a stack of doughnut boxes called workers at Corso’s Flower and Garden Center in Sandusky, Ohio, for a “meeting.” Minutes later, 100 armed ICE agents in military garb stormed the store with dogs while helicopters hovered overhead to ensure nobody escaped. In all, agents herded up 114 workers, zip-tying their hands behind their backs, without ever checking to see who were U.S. citizens.

Then they separated the men and women and took them to detention centers. Numerous minors also were swept up in the raid.

ICE released the minors after 12 hours, but a week later, over 200 children were still without their parents and are being cared for by a local church.

While ICE announced it was releasing some detainees for “humanitarian reasons,” many still remained in custody ...

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 than one person’s DNA, which other experts concluded was not accurate.

Cardell Torney was arrested and charged with sexual assault in 2012. Torney was identified by law enforcement through DNA analysis. Public defenders hired NMS and scientists Phillip Danielson and Christian Westring to conduct an independent analysis of the DNA. When the lab came back with results that suggested the possibility of other perpetrators, the trial court convened a hearing.

Bruce Budowle, former FBI scientist and current head of the Institute of Applied Genetics at the University of North Texas Health Science Center, testified for the government. His findings were vastly different than the NMS results. Budowle said NMS had improperly amplified the DNA and then misinterpreted the results. An expert on the Promega technology used by NMS also testified, saying the company misused the system.

The court agreed, finding the NMS results “incomprehensible,” “uninformative,” and “misleading.” ...

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 a federal jury of possessing a controlled substance with intent to distribute, being a felon in possession of a firearm, and possessing a firearm in furtherance of a drug-trafficking crime. Christian’s motion before trial to suppress evidence obtained by a search warrant was denied.

Christian pursued the claim on appeal. The search warrant was issued by a state magistrate on September 3, 2015. The four-page affidavit contained a page of facts that showed: (1) search warrants were executed at Christian’s residence in the past; (2) Christian has a history of years’ old drug convictions; (3) he engaged in one sale of drugs at the residence eight months prior to the application for a search warrant; (4) unidentified subjects of unknown reliability reported that Christian was selling drugs in the more recent past; and (5) a man with no connection to Christian was found to be in possession of drugs ...

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 the pornography prohibition was supported by a definition, the definition was vague as well.

“Jim Wilcox” exchanged sexually explicit Facebook messages with 9-year-old K.M. K.M.’s father contacted the police, and an investigation linked the Facebook account to Jameel Padilla. Padilla was charged with communication with a minor for immoral purposes. He was convicted and sentenced to 75 days of confinement and 12 months of community custody.

Padilla’s community custody sentence included several conditions. One condition prohibited him from “possess[ing] or access[ing] pornographic materials, as directed by his supervising Community Corrections Officer” (“CCO”). The condition defined pornographic materials as “images of sexual intercourse, simulated or real, masturbation, or the display of intimate body parts.”

Padilla challenged the condition on appeal, arguing that it was unconstitutionally vague. The intermediate court of appeals upheld the condition. Padilla sought review by the Washington Supreme Court. The Court granted ...

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 give unequivocal consent and that it was unreasonable for the officer to rely on Google Translate to obtain consent for the search.

On September 21, 2017, at about 3 a.m., Kansas Highway Patrol Trooper Ryan Wolting stopped Omar Cruz-Zamora for a suspended registration.

Cruz-Zamora spoke little English, so Wolting brought him back to his patrol car for questioning. He then used his laptop and Google Translate in order to question Cruz-Zamora. When Cruz-Zamora’s information checked out, Wolting issued him a citation for a suspended registration and told him “Adios.”

But before Cruz-Zamora could get back to his car, Wolting asked him (in English) whether he could ask him a few additional questions. During this second round of questions, which again involved Google Translate, Cruz-Zamora revealed that he had $7,700 in cash on him, which he planned to use to buy a car to take back to Mexico ...

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’ rights are against another individual, such as restitution, which Marsy’s Law promotes. In stark contrast, defendants’ rights are enforced against the government, to serve as checks against government abuse. To compare victims’ rights to defendants’ rights is to compare two very different things with different goals.

The problem is that Marsy’s Law, some say, could actually expand the government’s power against the accused, undermining the bedrock principle of the presumption of innocence. Some states are slowly coming to this realization. In 2016, South Dakota adopted Marsy’s Law and amended its Constitution. Now the state is trying to pass another constitutional amendment to fix the problems created by the language of Marsy’s Law.

New Hampshire lawmakers voted down Marsy’s Law by a vote of 284 to 51, and Idaho lawmakers voted it down twice.

To oppose Marsy’s Law is not to oppose victims’ rights, though. While seemingly well-meaning, amending ...

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’ rights by locking them up in White County because of their inability to pay court-imposed costs and fees,” according to reason.com. “Derrick oversees eight low-level courts in different towns in White County (population: 79,000) and two in nearby Prairie County. These district courts handle non-jury cases like traffic and contempt proceedings.” The lawsuit says “zero tolerance” for non-payment has “created an illegal, modern-day debtors’ prison in White County.” Derrick “routinely levies substantial fines, fees and costs against persons convicted of even the most minor infractions, and requires them to pay monthly amounts of at least $100, and sometimes several hundred dollars, towards court-imposed debt,” the complaint says. “If they fail to pay this amount in full, he subjects them to arrest, driver’s license suspension, and incarceration, as well as an additional $450 to $670 in fines and costs. He imposes these punishments without conducting ...




 

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Disciplinary Self-Help Litigation Manual

 

Prisoners Self Help Litigation Manual