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Prisoner Education Guide

Criminal Legal News: November, 2018

Issue PDF
Volume 1, Number 12

In this issue:

  1. Documents Reveal How Law Enforcement Partners with Private Companies to Surveil Schools (p 1)
  2. ACLU Sues ‘Crooked’ Public Defender in Georgia (p 9)
  3. Conviction Integrity Units, Innocence Commissions Tackle Wrongful Convictions, Prosecutorial Misconduct (p 10)
  4. Pennsylvania Police Use Hate Crime Law Against People Who Verbally Abuse Them, Dramatically Increasing Potential Jail Time (p 13)
  5. Texas Supreme Court Interprets State’s Expungement Statute (p 14)
  6. New Jersey Supreme Court Holds DNA Exception Tolling Statute of Limitations Applies Only to Suspect Directly Identified by DNA (p 14)
  7. Tennessee’s Death Penalty Laws Cruel and Arbitrary (p 15)
  8. Will Groundbreaking California Bail Reform Help or Hinder Defendants’ Likelihood of Pre-Trial Release? (p 16)
  9. Massachusetts Supreme Court Holds Seven-Year Delay and Inability to Receive Sex Offender Treatment While Awaiting SDP Trial Violates Due Process (p 16)
  10. Second Circuit Rules Police Not Entitled to Qualified Immunity After Failing to Comply With Terms of Material Witness Warrant (p 18)
  11. Fourth Circuit Affirms Ruling That Diagnosis of Intellectual Development Disorder Does Not Qualify as ‘Sexually Dangerous Person’ Under Federal Civil Commitment Statute (p 18)
  12. Maryland Court of Appeals Announces Proper Procedure for In Banc Review (p 20)
  13. Do Las Vegas Prosecutors Routinely Ignore Discovery Disclosure Requirements? (p 20)
  14. Federal Judge Orders Accused Hacker to Post Bail in Bitcoin or Other Cryptocurrency (p 21)
  15. Kansas Supreme Court Holds Prosecutor’s Blatant Lies to Jury During Closing Argument Constituted Prosecutorial Misconduct Requiring Reversal of Murder Convictions (p 22)
  16. U.S. Customs and Border Protection’s New Fuzzy Math Clearly Results in Inflated Assault Figures (p 22)
  17. How to File a Police Complaint (p 23)
  18. Retaliation a Risk When Video Recording Police Brutality (p 24)
  19. The Power of the Prosecutor: A Personal Account (p 24)
  20. Rhode Island Supreme Court Takes on ‘Thorny Issues’ Presented by Sex Offender Registry Laws (p 26)
  21. $3 Million Federal Court Settlement: Philadelphia Agrees to End Civil Forfeiture (p 26)
  22. West Virginia Legislature Impeaches State Supreme Court Justices for Alleged Misconduct (p 27)
  23. Man Who Lawfully Had Sex with Girlfriend, 17, Could Face Decades in Prison for Taking Sexually Explicit Photos of Her (p 27)
  24. Report: Right to Trial Exists in Name. In Reality, Only 3% of Cases Go to Trial (p 28)
  25. The Legacy of a Torturer (p 30)
  26. Is a Florida Chief Judge Taking Cues From a Prosecutor? (p 31)
  27. Indiana Supreme Court Announces Single Act of Resisting Police Bars Multiple Counts, Regardless of Number of Officers Involved or People Killed (p 32)
  28. Federal Judge Rules Cullman County, Alabama, Money Bond System Unconstitutional (p 32)
  29. U.S. Supreme Court: Plainly Miscalculated Guidelines Range Requires Appellate Court to Vacate Sentence in the Ordinary Case (p 33)
  30. Civil Libertarians Concerned About Undisclosed FBI Research into Tattoo Recognition Technology (p 34)
  31. Ninth Circuit Affirms $4 Million Verdict for Couple Shot by L.A. County Deputies During Warrantless Entry into Their Home (p 34)
  32. D.C. Circuit Holds Generic Appeal Waiver Does Not Bar IAC Claim During Sentencing (p 35)
  33. Federal Judge Orders New Orleans Municipal Court System to Reform Money Bail (p 36)
  34. U.S. Supreme Court: Defendant Sentenced Pursuant to a Rule 11(c)(1)(C) Plea ‘Generally Eligible’ for Sentence Reduction when Guidelines Retroactivity Reduced (p 36)
  35. Judge orders Tacoma to pay fines, attorney fees over stingray records (p 37)
  36. $150,000 Settlement for Man Beaten by West Virginia State Police (p 37)
  37. Ninth Circuit Reverses Conviction for Conspiracy to Smuggle Drugs Based Solely on ‘Drug Courier Profile’ (p 38)
  38. First Circuit Holds Sixth Amendment Speedy Trial Clock Starts Upon Original, Not Superseding, Indictment When Based on Same Act or Scheme (p 38)
  39. Ohio Governor Commutes Another Death Sentence (p 39)
  40. Texas Woman Receives Five Years in Prison for Illegal Voting After Criminal Conviction (p 39)
  41. Second Circuit Denies NYPD Qualified Immunity for Use of Military-Grade Acoustic Weapon on Peaceful Protesters (p 40)
  42. Nevada Supreme Court Announces Testimony at Probation Revocation Hearing Inadmissible in Later Criminal Proceeding (p 40)
  43. Brooklyn, New York’s Top Prosecutor Opens Door for Expungement of Pot Convictions (p 41)
  44. First Circuit Vacates Supervised Release Condition Effectively Prohibiting Contact with His Minor Children (p 42)
  45. News in Brief (p 42)

Documents Reveal How Law Enforcement Partners with Private Companies to Surveil Schools

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 ...

ACLU Sues ‘Crooked’ Public Defender in Georgia

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 ...

Conviction Integrity Units, Innocence Commissions Tackle Wrongful Convictions, Prosecutorial Misconduct

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 ...

Pennsylvania Police Use Hate Crime Law Against People Who Verbally Abuse Them, Dramatically Increasing Potential Jail Time

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 ...

Texas Supreme Court Interprets State’s Expungement Statute

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 ...

New Jersey Supreme Court Holds DNA Exception Tolling Statute of Limitations Applies Only to Suspect Directly Identified by DNA

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 ...

Tennessee’s Death Penalty Laws Cruel and Arbitrary

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 ...

Will Groundbreaking California Bail Reform Help or Hinder Defendants’ Likelihood of Pre-Trial Release?

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 ...

Massachusetts Supreme Court Holds Seven-Year Delay and Inability to Receive Sex Offender Treatment While Awaiting SDP Trial Violates Due Process

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 ...

Second Circuit Rules Police Not Entitled to Qualified Immunity After Failing to Comply With Terms of Material Witness Warrant

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 ...

Fourth Circuit Affirms Ruling That Diagnosis of Intellectual Development Disorder Does Not Qualify as ‘Sexually Dangerous Person’ Under Federal Civil Commitment Statute

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 ...

Maryland Court of Appeals Announces Proper Procedure for In Banc Review

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 ...

Do Las Vegas Prosecutors Routinely Ignore Discovery Disclosure Requirements?

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 ...

Federal Judge Orders Accused Hacker to Post Bail in Bitcoin or Other Cryptocurrency

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 ...

Kansas Supreme Court Holds Prosecutor’s Blatant Lies to Jury During Closing Argument Constituted Prosecutorial Misconduct Requiring Reversal of Murder Convictions

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 ...

U.S. Customs and Border Protection’s New Fuzzy Math Clearly Results in Inflated Assault Figures

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 ...

How to File a Police Complaint

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 ...

Retaliation a Risk When Video Recording Police Brutality

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 ...

The Power of the Prosecutor: A Personal Account

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 ...

Rhode Island Supreme Court Takes on ‘Thorny Issues’ Presented by Sex Offender Registry Laws

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 ...

$3 Million Federal Court Settlement: Philadelphia Agrees to End Civil Forfeiture

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 ...

West Virginia Legislature Impeaches State Supreme Court Justices for Alleged Misconduct

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 ...

Man Who Lawfully Had Sex with Girlfriend, 17, Could Face Decades in Prison for Taking Sexually Explicit Photos of Her

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 ...

Report: Right to Trial Exists in Name. In Reality, Only 3% of Cases Go to Trial

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 ...

The Legacy of a Torturer

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 a Florida Chief Judge Taking Cues From a Prosecutor?

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 ...

Indiana Supreme Court Announces Single Act of Resisting Police Bars Multiple Counts, Regardless of Number of Officers Involved or People Killed

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 ...

Federal Judge Rules Cullman County, Alabama, Money Bond System Unconstitutional

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 ...

U.S. Supreme Court: Plainly Miscalculated Guidelines Range Requires Appellate Court to Vacate Sentence in the Ordinary Case

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 ...

Civil Libertarians Concerned About Undisclosed FBI Research into Tattoo Recognition Technology

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 ...

Ninth Circuit Affirms $4 Million Verdict for Couple Shot by L.A. County Deputies During Warrantless Entry into Their Home

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 ...

D.C. Circuit Holds Generic Appeal Waiver Does Not Bar IAC Claim During Sentencing

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 ...

Federal Judge Orders New Orleans Municipal Court System to Reform Money Bail

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 ...

U.S. Supreme Court: Defendant Sentenced Pursuant to a Rule 11(c)(1)(C) Plea ‘Generally Eligible’ for Sentence Reduction when Guidelines Retroactivity Reduced

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 ...

Judge orders Tacoma to pay fines, attorney fees over stingray records

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 ...

$150,000 Settlement for Man Beaten by West Virginia State Police

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 ...

Ninth Circuit Reverses Conviction for Conspiracy to Smuggle Drugs Based Solely on ‘Drug Courier Profile’

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” ...

First Circuit Holds Sixth Amendment Speedy Trial Clock Starts Upon Original, Not Superseding, Indictment When Based on Same Act or Scheme

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 ...

Ohio Governor Commutes Another Death Sentence

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 ...

Texas Woman Receives Five Years in Prison for Illegal Voting After Criminal Conviction

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 ...

Second Circuit Denies NYPD Qualified Immunity for Use of Military-Grade Acoustic Weapon on Peaceful Protesters

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 ...

Nevada Supreme Court Announces Testimony at Probation Revocation Hearing Inadmissible in Later Criminal Proceeding

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 ...

Brooklyn, New York’s Top Prosecutor Opens Door for Expungement of Pot Convictions

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 ...

First Circuit Vacates Supervised Release Condition Effectively Prohibiting Contact with His Minor Children

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 ...

News in Brief

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 ...




 

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