by Steve Horn
Unbeknownst to college students across the country, their school may be surveilling their social media activity. What may be even more surprising to learn is that even individuals who have no affiliation with a school that’s engaged in this type of surveillance may nevertheless have their social media activity scooped up in the school’s social media surveillance dragnet simply due to their proximity to campus.
That’s what happened to Bobby Padgett. He wasn’t a student at East Carolina University (“ECU”). But that didn’t stop him from being monitored and surveilled on social media by the campus’ upper-level administrators and law enforcement unit utilizing a third-party company’s platform to do so.
Padgett – an activist who lived off campus when it happened in 2016 – had posted on Twitter calling the university’s chancellor a “right wing PoS [piece of shit]” and saying that it was “Time to crash his account or [to do an] old school sit in.”
The tweet caught the attention of administrators and law enforcement officers at ECU, who were using a platform named Social Sentinel to monitor key words in public posts on the social media sites Twitter, Facebook, and Instagram ...
by Ed Lyon
Reid Zeh is Glynn County, Georgia’s public defender. As a lawyer, his personal conduct is far from the sterling standard expected from members of the Bar. In March 2018, he was jailed on a battery charge. He promptly made bail and hired a lawyer to represent him. In June 2018, police cited him for driving his car into a woman’s porch while he was drunk. The officers told him not to drive any more that evening. He then had a negative encounter with a woman and was arrested for intoxicated driving later that same night. He posted bail of $1,690 to regain his freedom. Not so easy for any of his clients to do, though.
Two of Zeh’s client/victims were Margery Mock and Eric Ogden. Two of Glynn County’s poor, they had to rely on Zeh, who is paid a flat fee by Glynn County to represent its poorer citizens, to help them. Zeh never met with Mock or Ogden, who were jailed for misdemeanor criminal trespass charges because they could not afford bail. Zeh never sought any bail modifications that would have allowed his clients to leave jail pending trial.
Robert Cox and his ...
by Steve Horn
Conviction integrity units, known as CIUs and sometimes referred to as conviction review units or CRUs, have in recent years become increasingly widespread in county prosecutors’ offices throughout the U.S. They sit alongside actual innocence commissions, which exist in several states and review claims of innocence among those who say they have received a wrongful conviction, both serving as safeguards set up to fend off wrongful convictions and prosecutorial misconduct.
Both have been subject to praise and criticism. Some say they can help halt the ability of prosecutors to win wrongful convictions, while others say they’re a step in the right direction but leave more to be desired. But it is undeniable that, at least to a minor degree, both have shown signs of promise for appellants in the U.S. legal system in getting a second look at their convictions, in some ways challenging the clout of prosecutors’ offices.
But what are CIUs and innocence commissions, exactly, and how do they work both theoretically and in-action?
To critics, CIUs are seen as inherently a conflict of interest and an example of the proverbial fox guarding the henhouse, given the unit is a sub-office ...
by Kevin Bliss
Catherine Roper, deputy legal director of the Pennsylvania ACLU, wrote in her blog of the recent arrests and charges of hate crimes against citizens because they used inappropriate speech to the police while being arrested or simply submitting a police report.
Roper reviewed the affidavits of probable cause that four police officers used to justify hate crime charges against their suspects. Steven Oller and Robbie Sanderson were both being arrested for their individual crimes when they allegedly responded with verbal abuse. Seneca Payne was being picked up and taken to the hospital for a “welfare check” because he was drunk and threatening to hurt himself. He verbally lashed out because police were taking him for a psychiatric evaluation. Sannetta Amoroso stopped by the police department to report her TV stolen. She became verbally abusive when the police failed to give her claim the attention she felt it deserved.
These cases had two things in common. First, all of the alleged perpetrators were in handcuffs and no longer a threat to the police. Amoroso was cuffed when she struck a police officer on the shoulder. Secondly, every one of these people will receive an up charge for the ...
by David Reutter
The Supreme Court of Texas held that the state’s expungement statute is “neither entirely arrest-based nor offense-based.” Based upon the facts of this case, it held that the petitioner was entitled to expungement of records and files with respect to the charge for which she was acquitted.
T.S.N. was arrested on June 11, 2013, for a felony offense of aggravated assault with a deadly weapon. During the arrest process, the officer also executed a November 16, 2010, warrant for a misdemeanor offense of theft by check.
The assault charge was tried by a jury, resulting in an acquittal. T.S.N. pleaded guilty to the theft charge. After the acquittal, T.S.N. moved for expungement of the records and files relating to the assault charge under article 55.01 of the Texas Code of Criminal Procedure.
The State opposed the motion. It argued that the statute is “arrest-based,” requiring “expunction of arrest records only if the results of the prosecutions as to all of the charges underlying the arrest meet statutory requirements for expunction.” The trial court disagreed and granted T.S.N.’s petition, and the State appealed.
On appeal ...
by Dale Chappell
Tolling of the statute of limitations under the DNA statute applies only to the “actor” directly linked to the crime by the DNA, and not to others involved in the crime, the Supreme Court of New Jersey held. The Court interpreted the word ‘actor’ to mean only the person directly identified by the DNA.
When DNA evidence identified the defendants in two separate cases, those defendants talked, implicating others involved in their crimes. But the statute of limitations for the offense had long passed, absent any tolling under the DNA statute. The persons implicated in the cases argued that because the DNA did not “directly link” them to the crimes, the tolling provision for the applicable statute of limitations could not apply to them. The trial court agreed and dismissed the indictments, and the Appellate Division affirmed. The Supreme Court granted the State’s petition for certification and affirmed the lower courts’ rulings.
For most crimes, there is a statute of limitations that imposes a deadline on how long after a crime a person can be charged with the offense. However, the DNA-tolling exception under N.J.S.A. 2C:1-6(c) delays the running of the statute ...
by Kevin Bliss
The Tennessee Journal of Law and Policy (summer 2018) published a review of the state’s arbitrary application of capital punishment. The review focused on all of the first-degree murder cases prosecuted in the last 40 years and stated that the system is a “cruel lottery” and does not rectify the deficiencies that led the U.S. Supreme Court to declare its death penalty laws unconstitutional in 1972.
H.E. Miller, Jr., who conducted the study, and Bradley A. MacLean, both lawyers and the authors of Tennessee’s Death Penalty Lottery, wrote that the facts of the crime were not the determining factor whether a death sentence was imposed as much as where the murder occurred, the race of the defendant, quality of the defense, and views of the prosecutors and judges.
The study reveals that more cases have been overturned than upheld. They conclude that the death penalty system for the past 40 years (and even more so in the past 10 years) still contains the entrenched problems that the Supreme Court sought to eradicate.
This study was released shortly before Tennessee was set to carry out its first execution in nearly nine years. Billy Ray Irick was ...
by Dale Chappell
“While substantive due process permits limited confinement after a probable cause determination, it does not permit the Commonwealth to hold an individual indefinitely while repeatedly seeking a finding of sexual dangerousness,” the Supreme Judicial Court of Massachusetts said in holding that a seven-year delay in finding a person was sexually dangerous, coupled with lack of sex offender treatment, violated the person’s due process rights under the U.S. Constitution, requiring the Commonwealth to provide for supervised release while awaiting another sexually dangerous person (“SDP”) trial.
After the Commonwealth failed to convince three separate juries that “G.F.” was an SDP, necessitating civil commitment under G.L.c. 123A, over the course of seven years while he sat in a civil commitment center, he turned to the courts for relief. Across almost 17 pages of its opinion, the Massachusetts Supreme Court dissected the lengthy procedural history of G.F.’s civil commitment proceedings. Having been convicted at age 24 of molesting a friend’s teen daughters, G.F. was later convicted of three more sexual offenses in a similar fashion over the next decade. The fourth and final offense was when he bound and gagged his girlfriend’s ...
by Betty Nelander
Gov. Jerry Brown hailed a sweeping cash bail elimination law in California as landmark, years-in-the-making legislation to fairly treat “rich and poor alike.” Whether it will keep more people out of jail remains to be seen.
The California Money Bail Reform Act makes California the first state to fully scrap cash bail. It was signed into law August 28 and will take effect on October 1, 2019. It eliminates cash bail at the state court level. The rationale for the reform is based on the argument that whether a suspect is placed in jail shouldn’t depend on his or her ability to pay but on the risk the individual poses and whether the person will show up in court.
In fact, nearly 8 out of 10 individuals remain in detention because they can’t afford to post bail, according to desertsun.com. For those who do pay bail, it can be an excessive burden because the amounts defendants are often required to pay “rarely matches their circumstances.”
In practice, the biased cash bail system effectively favors the wealthy who can afford to pay for their freedom over the poor who are penalized. It has pressured “defendants ...
by Christopher Zoukis
The U.S. Court of Appeals for the Fourth Circuit affirmed a lower court’s ruling that a man civilly committed under 18 U.S.C.S. § 4247 (a)(7), part of the Adam Walsh Child Protection and Safety Act of 2006 (“Act”), was no longer a “sexually dangerous person.”
As a result of the April 10, 2018, ruling, 62-year-old Walter Wooden was ordered immediately released.
Wooden, who was first arrested for a sex crime when he was 16, suffered from a limited intellectual capacity. He molested several young boys in his teens and 20s and was convicted of a multitude of sex crimes. His last conviction resulted in a 25-year prison sentence, from which he was paroled in 2002. After violating parole and serving another prison sentence, the Government moved to civilly commit Wooden.
In order to do so, the Government would have to prove that Wooden was “sexually dangerous,” which the Act defines as “suffer[ing] from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” The district court initially refused to order ...
by Kevin Bliss
The U.S. Court of Appeals for the Second Circuit held that the detention of a prospective material witness for 18 hours in a holding cell instead of adhering to the terms of the material witness warrant violated plaintiff’s Fourth Amendment rights, and therefore the defendants were not entitled to qualified immunity at the summary judgment stage.
Francis Longobardi, then assistant district attorney of Queens County, New York, applied to the county supreme court to issue a material witness warrant for Alexina Simon in connection with an insurance fraud case he was investigating. Justice Kenneth Holder issued the warrant directing, “ALEXINA SIMON to appear at the hearing at the Queens County Courthouse in the City of New York on August 11, 2018 at 10:00 in the forenoon….”
Detectives Allegre and Lee went to the Millennium Broadway Hotel to execute the warrant. Yet, instead of going to the hearing, Simon claimed they drove her to the precinct and interrogated her for 10 hours. After dinner, Simon was taken to the courthouse to meet with Longobardi. He immediately recognized that this was not the witness he needed; it was, in fact, Simon’s daughter, Alexandra, he wanted.
by Matt Clarke
Attorneys for the Office of the Clark County (Nevada) Public Defender say prosecutors routinely violate state and federal laws governing the sharing of information known as “discovery.” They claim the situation is so grave that they have started tracking instances of prosecutorial discovery abuse. Sometimes the information is accidentally withheld, according to public defender David Westbrook, but often evidentiary documents are “wedged between the cracks, and then someone kicks dirt on them till nobody finds [them].”
The public defenders documented at least 28 cases in which prosecutors turned over discovery, such as recordings of jail phone calls, surveillance videos, police reports, body cam recordings, witness information, DNA and other forensic test results, medical reports, and other types of evidence fewer than 30 days before trial. Sometimes they received a large document dump just before trial. In four cases, the late discovery disclosure included exculpatory evidence. Some of the cases had discovery less than a day before trial. Six had discovery being provided only after the trial had already begun.
State law requires prosecutors to turn over witness statements no less than five days in advance of the defendant’s preliminary hearing, long before a trial is ...
by Dale Chappell
In a case where in banc review was improperly granted to review a circuit court’s ruling, the Court of Appeals of Maryland took the opportunity to clarify when in banc review can be granted.
After the circuit court granted Bashunn Phillips’ pretrial motion to exclude evidence from his murder trial, the State filed for in banc review of the court’s order. The in banc panel reversed the circuit court’s order, and Phillips appealed to the Court of Special Appeals. Reversing the in banc panel’s decision, the Court of Special Appeals held that the State had no right to appeal the circuit court’s order to the in banc panel, and the panel therefore did not have jurisdiction to hear the appeal. The State appealed to the Court of Appeals.
Before the Court of Appeals, the State argued that it had the right under Article IV, § 22 of the Maryland Constitution to appeal to the in banc panel. The Court framed issue as, “Whether the in banc court was lawfully created” at all.
Under Article IV, §22 of the Maryland Constitution, a party may challenge a circuit court’s decision to “three judges of the Circuit, who shall constitute ...
by Derek Gilna
Martin Marsich, a 25-year-old foreign national, was arrested on August 8, 2018, for hacking into Electronic Arts Company’s internal computer network and gaining access to approximately 25,000 customer accounts that are used to buy items for use in video games.
At his bond hearing, U.S. District Court Judge Jacqueline Corley, according to the website AMBCrypto, ordered the defendant to post a bond of $750,000 in either Bitcoin or any other cryptocurrency to win his release to a halfway house. The court’s bail order, however, was not made available for public viewing. It is believed to be the first time that a federal judge has ordered that form of payment in a federal criminal court case.
Although the court ordered the bond to be paid by the use of digital currency, Assistant U.S. Attorney Abraham Simmons was initially amenable to that bond order stating, “The idea is to get [the defendant] to court, not necessarily to maintain the value of any particular asset, I would imagine that either side would alert the court of an extreme change in the value of the asset, but it doesn’t mean that the court would care one way ...
by Dale Chappell
A prosecutor’s lies amounted to prosecutorial misconduct requiring a new murder trial, the Supreme Court of Kansas held in a lengthy opinion exposing at least seven major errors by the prosecution.
The Court began its opinion with the following admonishment: “In a criminal prosecution, the State’s obligation is to ensure its case is vigorously, but properly, championed to bring about a just conviction—not merely a win.” It ended its opinion by lamenting, “this prosecution unfortunately illustrates how a desire to win can eclipse the State’s responsibility to safeguard the fundamental constitutional right to a fair trial owed to any defendant facing criminal prosecution in a Kansas courtroom.”
Dana Chandler was accused of murder after her ex-husband and his girlfriend (Mike and Karen) were found dead in their home July 2002. The only evidence police had against Chandler was a nasty divorce and her sometimes obsessive behavior toward Mike and Karen. Nine years later, Chandler was arrested for the murders, charged with premeditated first-degree murder, and went to trial.
The State convinced the jury to convict Chandler — in part by lying. The prosecutor, Jacqueline Spradling, told the jury that Mike had to obtain a protection ...
by Christopher Zoukis
On February 14, 2017, seven U.S. Border Patrol Agents were involved in an altercation with six subjects and three projectiles (rocks, bottles, and tree branches). How many assaults occurred?
According to traditional law enforcement accounting methods, seven, even assuming that none of the agents were hit with anything or injured. According to the fancy new method used by U.S. Customs and Border Patrol (“CBP”), there were 126 assaults as a result of the February incident. Seven agents times six perpetrators times three weapons.
It seems that Mark Twain may have been on to something when he popularized the saying that there are three kinds of lies: “lies, damned lies, and statistics.”
According to a new report from The Intercept, CBP has used this suspicious new accounting method as the basis for reports that assaults on Border Patrol agents skyrocketed in 2016. That narrative has been breathlessly repeated in the right-wing media as evidence that illegal immigrants are storming the border. And in November 2016, then-Border Patrol Chief Mark Morgan used the fudged numbers in a Senate committee hearing, telling senators that assaults on agents working near the Mexico border jumped 200 percent from 2015 ...
by Kevin Bliss
The “resist tyranny” website Rons Spot (ronsspot.org) published a detailed report, complete with possible scenarios and advice, on how to file a complaint against a police officer.
The article states that a complaint is not a lawsuit; it is a report of a less serious nature against the police for a particular action of misconduct. The report is then placed in the police officer’s record to hopefully keep him or her from continuing to abuse his or her authority. It also makes the police superiors aware of the conduct that may need to be addressed.
The article advises filing complaints to assist in ending the “abuse of power by police.”
First, do not go into a police station alone to file a complaint. Take a couple of days to commit your complaint coherently on paper. Keep your emotions out of it, but make a clear and detailed account of the incident. Do not lie or exaggerate. Doing so only discredits your account in this situation and any future encounters and may even lead to charges or lawsuits against you. If there’s corroborating testimony from other witnesses, have them write it out. Evidence should be photocopied ...
by Kevin Bliss
With current technology, filming incidents of police brutality has become more common, yet many of those responsible for capturing events on film claim retaliation by the same police they film.
Kevin Moore was filming the day Freddie Gray was beaten by Baltimore police. That film was immediately taken to the police department’s Internal Affairs Division with the offer of Moore’s testimony. For his efforts, Moore stated, he was harassed and intimidated by the same police department. Moore said he was threatened, detained at gunpoint, and had a surveillance video of him released on social media asking for help identifying him as a witness. He said the police did this to make him look like a “rat” and to put his life in jeopardy.
A similar video showed the same intimidation tactic used on an anonymous bystander. He suggested that Gray appeared to need medical assistance, and the police responded by threatening the bystander with a stun gun if he did not leave.
Ramsey Orta filmed a cop with the NYPD pinning Eric Garner to the ground with a chokehold as he gasped for breath pleading that he couldn’t breathe. Garner asphyxiated to death. Orta shared this video ...
by Ashley Sawyer, Campaign for Smart Justice Consultant, ACLU of Vermont
Have you ever watched an episode of “Law & Order”? The creators do an amazing job of dramatizing the court process. The characters playing the prosecutors are always eloquent and passionate as they go toe-to-toe with an indignant defense attorney who is quick to counter every point. We see this version of the trial process all the time in mainstream media. The real life, everyday version is much different. My real-life experience was much different.
Like millions of others in this country, my experience didn’t involve expensive defense lawyers, just overworked and underpaid public defenders. There were no passionate arguments from the prosecutors because over 90 percent of all cases end in a plea agreement, as mine did. I was convicted in 2015 for two felonies and a few subsequent misdemeanors. My felonies were fraud-based charges for cashing checks that weren’t mine. My misdemeanors included things like attempted retail theft, trespassing, and a couple other minor things.
I did not walk into that courtroom a hardened criminal, and I had never been to jail. My real crime was addiction. Like many others, I was a heroin addict and committed ...
by Derek Gilna
A federal civil rights suit alleging massive abuse of Philadelphia’s civil asset forfeiture program was settled in September 2018 for $3 million, which will be distributed to individuals it victimized.
The settlement resolved a 2014 federal class-action court action filed by the Institute for Justice on behalf of Markela and Chris Sourovelis, who lost their home after their son was arrested for selling $40 in illegal drugs outside.
According to Darpana Sheth, a senior attorney for the Institute for Justice, “For too long, Philadelphia treated its citizens like ATMs, ensnaring thousands of people in a system designed to strip people of their property and their rights. No more. Today’s groundbreaking agreement will end years of abuse and create a fund to compensate innocent owners.”
The settlement followed closely in the wake of legislation in Pennsylvania that tightened the requirements for the state’s civil asset forfeiture program, as well as similar legislation passed in almost half of the nation’s states. In July 2018, a federal court judge in New Mexico ruled that Albuquerque’s civil asset forfeiture procedures were unconstitutional.
Critics of the New Mexico program and similar programs, including the American Civil Liberties Union, argue that civil ...
by Christopher Zoukis
State legislatures across the nation seem unable to stop themselves from tinkering with and upgrading their sex offender registry laws. The Rhode Island Legislature is no exception, and continual changes forced the state’s Supreme Court to wade into the treacherous waters on April 23, 2018.
In November 1994, Frederick Gibson was convicted of second-degree child molestation sexual assault. He received a sentence of 15 years, with four and a half years to serve and the balance suspended. Gibson was required to register as a sex offender under the 1992 version of Rhode Island’s registry law, G.L. § 11-37-16.
Between 2007 and July 2012, Gibson was charged with failing to register four times. He pleaded no contest the first three times but moved to dismiss the fourth. His motion to dismiss was denied by the trial court, and Gibson appealed to the Rhode Island Supreme Court. At this point, Gibson also had filed a motion for post-conviction relief as to the first three convictions. The Court consolidated these cases and heard argument.
Gibson’s arguments were two-fold. First, he said changes in the Rhode Island registry laws limited the duration of his duty to register to 10 years ...
While age of consent to have sex is 16 in Ohio, it is not the age of consent to take sexy photos of minors in the nude. In fact, it is illegal to create, share, or possess sexually-explicit images of someone younger than 18.
This fine distinction could send one man to prison for decades.
That’s because Edward Marrero was 20 at the time he was having consensual sex with his then-17-year-old girlfriend—but also snapping sexually explicit photos of her, according to an affidavit.
Marrero revealed this information on the stand in federal court, when he was testifying in defense of a roommate who was facing child pornography charges. He was immediately arrested.
“It defies all reason that a man could go to prison for three decades for taking a sexy picture of a teenager who was deemed fully capable of consenting to sex,” according to Reason.com. “This is a travesty of justice, a violation of consenting adults’ sexual freedoms, an abuse of mandatory minimum sentencing, a blow to states’ rights, and an absurd waste of the FBI’s time.”
According to the U.S. Department of Justice’s guide to federal child pornography law, “a first time offender ...
by Derek Gilna
The West Virginia legislature on August 13, 2018, approved 11 articles of impeachment against all West Virginia Supreme Court justices for alleged “wasteful spending, maladministration, incompetency, neglect of duty, and potential criminal behavior,” according to CNN.
The impeachment vote generally broke along party lines, with most Republicans voting in favor, and Democrats voting in opposition.
Chief Justice Margaret Workman, and Justices Allen Loughry, Robin Davis, and Elizabeth Walker, were formally charged. All but Workman will face trial on those charges in the West Virginia Senate, which requires a three-fifths vote to convict. Workman’s trial was blocked October 11, 2018, by the West Virginia Supreme Court of Appeals, which cited violations of the separation of powers doctrine. “This case is not about whether or not a justice of the Supreme Court of Appeals of West Virginia can or should be impeached; but rather it is about the fact that to do so, it must be done correctly and constitutionally with due process,” the ruling stated.
A fifth Justice, Menis E. Ketchum II, who retired from the court in late July, has since been charged with federal financial crimes, and will apparently plead guilty.
House Speaker ...
by Steve Horn
The Sixth Amendment to the U.S. Constitution guarantees a right to trial by jury, but a new report documents that in the U.S. criminal justice system, trials have become the rare exception — not the rule.
“The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It” was published in July by the National Association of Criminal Defense Lawyers (“NACDL”).
It has added to the volumes of scholarship on the topic, concluding that the right to a jury trial in criminal courts has all but gone extinct in the United States. In more precise terms, the report says only about 3 percent of criminal court cases go to trial, with the rest put to bed via plea bargaining.
The “trial penalty,” details the report, “results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.”
“If there were no discrepancy at all, there would be far less incentive for defendants to plead guilty. But the gap between post-trial and post-plea sentences can be so wide ...
Former Chicago police officer Jon Burge tortured black men and got away with it for almost two decades. But his atrocities also spurred a movement — one that scored a major victory against the racist criminal justice system.
by Joan Parkin, Jacobin
Former Chicago police commander and torturer Jon Burge is dead. For over two decades, Burge operated a chamber of horrors with a ring of veteran detectives on Chicago’s south side, railroading a dozen mostly African-American men to death row and hundreds more to long prison sentences on the basis of confessions extracted under torture. Rising through the ranks — from detective to sergeant to commander — Burge relentlessly pursued confessions from people so horrified and dazed that they would have said anything to stop the torture.
One of Burge’s victims, Darrell Cannon, said in court in 2015 that Burge and other officers seemed to enjoy torturing people. Here was a man who so undervalued black lives that the words “it’s fun time” would spew from his sneering lips before he chained people to steaming hot radiators, attached charged wire electrodes to sensitive body parts, played Russian roulette with a loaded gun, suffocated men with typewriter covers, and beat ...
by Jacqueline Azis, Staff Attorney, ACLU of Florida & Somil Trivedi, Staff Attorney, ACLU Trone Center for Justice and Equality
Prosecutors are some of the most powerful elected officials in our country. They decide what charges to file or dismiss, how severe the charges will be, whether to seek cash bail, and what plea offers are made. Through their lobbying associations, they also shape criminal statutes to their benefit, often blocking reforms that the community supports.
But while prosecutors wield immense control over the direction of our criminal justice system, they certainly can’t handpick the judges who hear their criminal cases.
Or can they?
In Marion County, Florida, Brad King — the elected state attorney and the county’s top prosecutor — believed he was losing too often in the criminal cases his office was prosecuting. Instead of upping his game, he managed to shift it in his favor, with the help of a judge whose job it is to guard the integrity of the judicial process.
On July 12, King sent a scathing letter to the administrative judge of Marion County, Judge James McCune, complaining about two of McCune’s colleagues, before whom King and his staff regularly appeared: Judge ...
by Derek Gilna
U.S. District Court Judge Madeline Hughes Haikala issued a preliminary injunction on September 13, 2018, which effectively ends the money bond system of Cullman County, Alabama, finding that it violates the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Cullman County, located in the middle of the state, was alleged to have run a bonding “scheme” for criminal defendants.
Bradley Hester and other plaintiffs had alleged that the county required a standard property bond of $1 million for defendants, especially those accused of drug crimes.
Judge Haikala had entered an order earlier in the month, which had settled the issue of liability, and invited the county to help craft a replacement for the previous money bill system.
The county declined to offer any input into the crafting of the final language of the preliminary injunction, so the judge imposed her own solution to what she described as constitutional deficiencies. “Subject to the exceptions identified below,” the court said, “and until Cullman County proposes alternative, constitutionally-sound procedures — following arrests, the Sheriff of Cullman County must release all bail-eligible defendants on unsecured appearance ...
by David Reutter
The Supreme Court of Indiana held that Indiana Code § 35-44.1-3-1 authorizes only one conviction for felony resisting law enforcement where the defendant engages in a single act of resisting while operating a vehicle that causes multiple deaths.
After a motorist informed Indiana Police State Trooper James Manning that a blue Chevy Tahoe was driving northbound in the southbound lanes of I-69, Manning activated his patrol vehicle’s emergency signal and gave pursuit. He soon came up behind the Tahoe, driven by Brian Paquette.
Paquette initially slowed down, but he made a U-turn in the median and once again drove the wrong way—this time, traveling south in the northbound lanes. Manning continued pursuit. Two miles after making the U-turn, Paquette collided head-on with a vehicle carrying Stephanie Molinet and Autumn Kapperman. Both women died, as did Kapperman’s unborn child. The impact caused the Tahoe to flip, and it instantly killed Jason Lowe when it landed on the driver’s side of his car.
As officers waited for firefighters to extract the surviving Paquette from the Tahoe, he told them he believed he was being chased by farmers through a field. He also said he believed he was carrying ...
by Christopher Zoukis
The Supreme Court of the United States ruled that when a district court plainly miscalculates a defendant’s Guidelines range and the mistake affects the defendant’s substantial rights, appellate courts should exercise discretion under Federal Rule of Criminal Procedure 52(b) to vacate the sentence.
The Court’s June 18, 2018, opinion said in the “ordinary case,” a miscalculated and erroneous sentencing range usually establishes a reasonable probability that a defendant will serve more prison time than necessary, absent correction.
Flores Rosales-Mireles pleaded guilty to illegal reentry. The probation officer prepared the presentence report, which contained an error—one of Rosales-Mireles’ previous convictions was counted twice. No one noticed the error, which raised Rosales-Mireles’ Guidelines range from 70-87 months to 77-96 months. The district court sentenced Rosales-Mireles to 78 months.
Soon thereafter, Rosales-Mireles noticed the error. On appeal to the Fifth Circuit, she argued that the appellate court should vacate the sentence pursuant to Rule 52(b), which provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the [district] court’s attention.”
The Fifth Circuit applied the framework established in United States v. Olano, 507 U.S. 725 ...
by Derek Gilna
Yet another example of how the judicial and legislative branches are falling behind the curve in protecting American citizens from undisclosed forms of surveillance and classification was revealed in a report by the Electronic Frontier Foundation (“EFF”) published in April 2018. In EFF’s recent Freedom of Information Act (“FOIA”) lawsuit, the organization found that the FBI is not only racing to develop facial recognition technology, but also is expanding its efforts into the area of “Tattoo Recognition,” all without informing the public or government agencies that allegedly have oversight over such activities.
According to EFF, that project was initiated in 2015 when the National Institute for Standards & Technology (“NIST”), in collaboration with the FBI, started “promoting experiments using tattoo images gathered involuntarily from prison inmates and arrestees.”
After collecting the data from that effort, the law enforcement community, without any notice to the public, contacted 19 outside tech organizations seeking a technology that could be used to mine the data. They also sought an image recognition app, suitable for use on mobile devices, in an attempt to classify “people of interest.”
As with other government-funded research projects operating in gray areas, oversight was ...
by Dale Chappell
The U.S. Court of Appeals for the Ninth Circuit upheld a verdict, after remand by the U.S. Supreme Court, awarding $4 million to a couple who were shot by Los Angeles County Sheriff’s deputies during a warrantless and unlawful entry of their home.
While Angel and Jennifer Mendez slept in their home, two L.A. County Sheriff’s deputies, Christopher Conley and Jennifer Pederson, broke in the door with guns drawn looking for a missing parolee. They didn’t have a warrant, consent, or exigent circumstances to justify their entry, nor did they even announce their presence prior to entering. When Angel, who is deaf, moved a BB gun to place it on the floor, Conley opened fire, shooting Angel 10 times and Jennifer twice. Both recovered, but Angel lost most of his leg. Police were acting on bad information that the parolee was last seen in the area of the Mendezes’ home riding a bike. He was not in the home, and the Mendezes did not know the parolee.
The Mendezes filed claims under 42 U.S.C. § 1983 in the U.S. District Court for the Central District of California, alleging the officers violated ...
by Dale Chappell
The U.S. Court of Appeals for the D.C. Circuit ruled that a “generic appeal waiver does not affect a defendant’s ability to appeal his sentence on yet-to-arise ineffective-assistance-of-counsel grounds.”
An unnamed defendant in a sealed case signed a plea agreement, on counsel’s advice, that included a generic appeal wavier stating that the defendant “waives any and all appeals and collateral attacks in this case and agrees that this case will become final once he has been sentenced.” However, the waiver did not explicitly address his right to appeal on ineffective assistance of counsel (“IAC”) grounds.
Notwithstanding the generic waiver, the defendant appealed, arguing that counsel was ineffective during sentencing. The Government opposed, arguing the waiver barred any appeal. The Court agreed to hear the appeal despite the waiver.
A defendant can waive in a plea agreement the right to appeal a sentence that has not yet been imposed, as long as the decision to do so is knowing, intelligent, and voluntary. United States v. Guillen, 561 F.3d 527 (D.C. Cir. 2009). Generally, “an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretion is not subject ...
by Derek Gilna
On August 6, 2018, Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana ordered the New Orleans Municipal Court system to reform its money bond system, stating in his opinion in a case filed by defendants that, “[p]laintiffs have been deprived of their fundamental right to pretrial liberty.”
Sentence reform advocates have long argued that the money bond system, which requires criminal defendants to post cash bonds before being released, regardless of their ability to pay, is a violation of due process.
In the case of the New Orleans courts, plaintiffs had alleged that in its system, criminal court judges control the flow of money from the bonds set, and use the proceeds collected to help fund the court system.
Plaintiffs had argued that those courts were siphoning millions of dollar annually from the poor, while depriving defendants of their liberty merely based upon their ability to pay bond.
According to Judge Fallon, the “deprivation of liberty requires a heightened standard,” and the municipal court judges must establish that “clear and convincing evidence” that a defendant should be detained.
Jon Wool of the Vera Institute of ...
by Christopher Zoukis
The Supreme Court of the United States, in a 6-3 ruling, cleared up significant confusion in the circuit courts of appeals by ruling that a criminal defendant who was sentenced pursuant to a Rule 11(c)(1)(C) guilty plea is “generally eligible” for a sentence reduction when the defendant’s Guidelines range is later reduced as the result of a retroactive guidelines amendment. The June 4, 2018, opinion resolved a circuit split as to whether such defendants can receive the benefit of a retroactive Guidelines amendment that lowers their Guidelines range.
In 2013, Erik Hughes entered into a Rule 11(c)(1)(C) plea agreement in which he agreed to plead guilty to conspiracy to distribute methamphetamine and being a felon in possession of a gun in exchange for a sentence of 180 months. The plea, also known as a “Type-C agreement,” reflected agreement between the parties that 180 months was the proper sentence and bound the district court to the sentence if it agreed to accept the plea. The district court determined that the proper sentencing range was 188-235 months, accepted the plea, and sentenced Hughes to 180 months.
Two months later, the United States ...
by Dale Chappell
A Pierce County judge hit the City of Tacoma, Washington, with nearly $300,000 in fines and fees for violating the state’s Public Records Act (“PRA”), when it failed to turn over records on its use of stingray devices.
The court said the city deliberately withheld documents that it should have disclosed under the PRA, which mandates that the city “must first do an adequate search and then produce the documents requested if there is not an exemption.” The PRA does not require the city to analyze why records are requested or to determine their relevance, the court said.
The city’s defense that the documents were “easily obtainable by any member of the public by doing a simple Google search,” and that most of the documents were published in the local paper anyway was “troubling in many regards,” the court said. “At a minimum, the city is required to inform the requestor of where it has placed the requested documents.”
A stingray device is used to determine a target cellphone’s location by spoofing a real cellphone tower with a strong signal forcing all phones in the area to connect to it. Users then ...
For the fourth time in his employment with the West Virginia State Police, Ralph Justus was named as a defendant in a case alleging police brutality. The state agreed to settle out of court for $150,000, making it a total of $415,000 that the state has paid on account of Justus, who is no longer employed with the department.
In this instance, the aptly-named Jamie Justice alleged that Justus and his partner Jarod Tupper beat him unconscious in the Welch Detachment of the West Virginia State Police after he was pulled over for a traffic stop in September 2016.
Justice admitted to having narcotics on him, and the troopers responded by handcuffing him, slamming his head against the car, kneeling, kicking, punching, and stomping him, and then choking him into unconsciousness.
His ex-wife and her cousin called the Detachment asking for him and were told by an unnamed woman, “If he isn’t here, they are probably out beating the crap out of him,” according to the suit.
Justice’s suit also named supervisors Chris Kane and Robert Danielle for showing deliberate indifference and tacit authorization.
Justus was recently accused of sexual assault on the job. He was placed ...
by Dale Chappell
The U.S. Court of Appeals for the First Circuit held that a superseding indictment based on the same conduct as the original indictment does not reset the Sixth Amendment speedy trial clock and affirmed the district court’s dismissal of the charge in the indictment.
In March 2011, the government charged Raman Handa with 12 counts of wire fraud, but the government never notified him or his attorneys of the charges. When the government could not find Handa, it alerted the International Criminal Police Organization (“INTERPOL”) that there was a warrant for Handa’s arrest. Thereafter, the government made no effort to find Handa, even though he had been openly living in India and in England. He also had visited the U.S. embassy in India to update his passport with his address in New Delhi and applied for and received Social Security and Medicare benefits. The government finally got its man when Handa flew to Los Angeles in February 2017, where he was arrested on the 2011 charges.
Handa invoked his Sixth Amendment right to a speedy trial at his arraignment and filed a motion to dismiss the charges on speedy trial grounds. Two days before its ...
by Christopher Zoukis
The U.S. Court of Appeals for the Ninth Circuit reversed a defendant’s conviction for conspiracy to import and distribute marijuana because the government provided no evidence of drugs or a conspiracy. The May 7, 2018, opinion also emphasized that expert witness testimony of “drug courier profiles” alone is insufficient to establish guilt.
Pragedio Espinoza-Valdez was captured by U.S. Border Patrol agents as he sat on a mountaintop in the Vaiva Hills area of Arizona. The area is a known drug trafficking corridor, and when agents apprehended Espinoza-Valdez, they found a Motorola radio, batteries, toilet paper, wet wipes, food, and carpet shoes. The agents believed that Espinoza-Valdez was working as a spotter for a drug trafficking operation. The agents were unable to find any illegal drugs, nor did they know who Espinoza-Valdez was working with.
Despite a near-total lack of evidence, the government charged Espinoza-Valdez with conspiracy to import and conspiracy to distribute marijuana. At trial, Border Patrol Commander Bobby Garcia testified as an expert on trafficking organizations. He stated smuggling groups are watched over by spotters, who often carry encrypted Motorola radios and carpet shoes (to disguise their footprints). Garcia said in his opinion, Espinoza-Valdez ...
Ohio Governor John Kasich commuted another death sentence, his seventh, amid concerns from one of the jurors in the case that prosecutors hid crucial details about the defendant’s horrific upbringing and drug problems that would have swayed that juror to vote against the death penalty.
The juror wrote a letter to Kasich after discovering online Raymond Tibbetts’ plea for clemency last year, which detailed his troubled childhood in foster homes. Tibbetts’ plea was denied.
“I have deep concerns about the trial and the way it transpired,” the juror wrote Kasich. “If prosecutors had been honest and forthcoming about the horror Tibbetts and his siblings experienced in the foster system, and [his drug problems], I would have voted for life without parole over death.” The juror’s single vote against the death penalty would have limited Tibbetts’ sentence to life without parole.
After receiving the juror’s letter, Kasich pushed back Tibbetts’ execution date and directed the Ohio Parole Board to reconsider Tibbetts’ application for mercy. The board voted 8 to 1 to deny Tibbetts mercy, even after hearing the juror’s concerns. Kasich said he granted clemency because “fundamental flaws in the sentencing phase of Tibbetts’ trial had prevented the jury ...
by Derek Gilna
Crystal Mason, who had previously been convicted of tax fraud in 2011, will now serve a five-year sentence after being convicted in March 2018 of illegally voting in the 2016 presidential election. The 43-year-old Tarrant County, Texas, woman was on supervised release for that tax charge when she voted in violation of Texas law.
Mason, who claimed to be unaware that her supervisory status prevented her from voting, arrived at her polling place expecting to find her name on the voter rolls and was given a provisional ballot after she executed an affidavit for election officials that misrepresented her eligibility to cast a ballot.
Mason had served a three-year sentence in federal prison as a result of fraudulent preparation of tax returns, had accepted responsibility for that offense, and maintained that she would never intentionally violate election law. “I was happy enough to come home and see my daughter graduate,” she said. “My son is about to graduate. Why would I jeopardize that? Not to vote ... I didn’t even want to go vote.”
She was arrested at her probation office in February after an election worker noted her status. Although she pleaded guilty to the ...
by Dale Chappell
Announcing a new rule to protect the constitutional rights of criminal defendants who face both probation revocation and new criminal charges, the Nevada Supreme Court held that testimony and evidence from a probation revocation hearing cannot be used against a criminal defendant at a later criminal proceeding, allowing defendants to defend themselves at the revocation hearing while protecting defendants from incriminating themselves later.
When Kamesha Cooper allegedly violated her probation for committing a new offense, her defense lawyer told her not to testify at the probation revocation hearing because that testimony would be used against her in the later criminal proceedings for the new charges. Good advice. Though constitutionally questionable, such a practice was permitted in Nevada at the time. As much as Cooper wanted to defend herself at the revocation hearing, she could not do so without making herself the State’s “chief witness” against her in the criminal case.
The district court, recognizing Cooper’s dilemma, stated she was “either going to be prejudiced here by not testifying or prejudiced potentially in the” criminal proceedings. Finding Cooper had violated her probation, the court revoked her probation. She appealed.
Because probation revocations are not criminal prosecutions, probationers are ...
by Christopher Zoukis
The U.S. Court of Appeals for the Second Circuit dealt the New York Police Department a blow in its attempt to avoid liability for using an acoustic weapon developed by the military to disperse a peaceful gathering of protesters. The Court’s June 13, 2018, ruling upheld a district court’s denial of qualified immunity from suit and ordered that the case proceed.
On December 3, 2014, a Staten Island grand jury declined to indict the NYPD officer who choked Eric Garner, an unarmed black man, to death. Nationwide protests erupted the next day. One such protest took place in Manhattan.
Hours into the protest, with no warning, NYPD officers began discharging pepper spray into a nonviolent crowd that was blocking a city street. As protesters fled the area, NYPD Lieutenant John Maguire and Officer Mike Poletto deployed one of the department’s newest toys, the long-range acoustic device (“LRAD”), also known as the “sound gun.” The LRAD was developed by the U.S. military for “area denial” use on the battlefield. The weapon works by blasting high volumes of sound into concentrated areas, causing significant pain and injury to human ears.
The weapon worked as designed. Everyone ...
by Derek Gilna
Brooklyn District Attorney Eric Gonzalez has announced that he will accept applications from thousands of individuals to erase their low-level marijuana convictions in a program unveiled in September 2018. He said his office has already ceased prosecuting people accused of possessing small amounts of pot. Prosecutors indicated that they will not approve requests from individuals with multiple drug sales, violent crimes, and sex offenses.
Criminal justice experts have noted that individuals with a criminal history have more difficulty finding employment, securing acceptable accommodations, avoiding immigration issues, and are often barred from receiving public benefits. Statistics show that most of those affected by pot arrests are either black or Hispanic.
According to Gonzalez, “It’s a little unfair to have these folks carry these convictions for the rest of their lives.”
It is expected that there are at least 20,000 cases dating back to 1990 that could be impacted, with those crimes removed from these individuals’ criminal histories. “This is really a relief that I think we can provide, and we do it in a way that is safe,” he said.
New York City marijuana arrests peaked at over 50,000 in 2011 and declined to ...
by Matt Clarke
On June 20, 2018, the U.S. Court of Appeals for the First Circuit held that a condition of supervised release prohibiting contact with minors without pre-approval from a probation officer in a plea-bargained possession of child pornography case was clear error and a miscarriage of justice as it prevented contact with a minor son and daughter and was unsupported by the record. The condition was vacated, and the case remanded for the district court to reconsider the condition.
Edwin Cabrera-Rivera was charged with one count each of production and possession of child pornography. He pleaded guilty to the possession count in exchange for a recommendation of a 108-month sentence. The written joint recommendation contained a waiver of appeal and no mention of length or conditions of supervised release. The court sentenced him to 108-months imprisonment and 144 months of supervised release, imposing numerous conditions of supervised release, including one prohibiting him from residing with, accompanying, or socializing with any person younger than 18 years without pre-approval from his probation officer. Cabrera appealed.
The First Circuit held that, because the sentence Cabrera received was the sentenced he agreed to in the joint recommendation, he could not appeal ...
Alabama: Huntsville police officer William Benjamin Darby faces a murder charge in the April 2018 fatal shooting of a mentally ill man. While the officer was cleared by his department, he was indicted by a Madison County grand jury, accused of killing Jeffery Louis Parker at Parker’s home, whnt.com reports. Darby and two other officers responded to a 911 call by Parker, who reported he was suicidal and had a gun. Darby reportedly shot Parker after Parker did not heed commands to drop his weapon. The grand jury saw body camera video of the incident and heard from police witnesses who spoke to department training. The charge is in contrast to a decision by the police shooting review board that said Darby heeded police procedures and training. In separate statements, officials backed the cop and voted to spend thousands of taxpayer money on his defense. Huntsville Police Chief Mark McMurray said Darby is “by no means a murderer” and was “called upon to make split-second decisions in a nightmare scenario.” In 2016, Darby earned the Top Gun Firearms Award. Darby is on leave pending the outcome of his trial.
Arkansas: After stripping county Judge Wendell Griffen of the ...