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Criminal Legal News: December, 2018

Issue PDF
Volume 1, Number 13

In this issue:

  1. Eyewitness (Mis)Identification in the Criminal Justice System: Powerful, Persuasive, and Problematic (p 1)
  2. Arkansas Supreme Court Reverses Negligent Homicide Conviction Where Evidence Obtained Via Warrantless Blood Draw Used (p 11)
  3. Colorado Supreme Court Announces ‘Preponderance of the Evidence’ Standard for Determining Voluntariness of Consent to Search (p 12)
  4. Free at Last! California Modifies Its Felony Murder Law, Helping up to 800 Prisoners Currently Serving Life Sentences (p 12)
  5. Should the Minimum Age for the Death Penalty be Bumped Up to 21? (p 13)
  6. Habeas Hints: Evaluating and Initiating IAC Claims (p 14)
  7. Pennsylvania Supreme Court Holds FTA Does Not Affect Independent Speedy Trial Violation by Prosecutor (p 16)
  8. Is Blue Privilege at Work in Texas Police Killings? (p 17)
  9. Warning: Integrity of Judicial Process at Risk (p 18)
  10. Kentucky Supreme Court Declares Law Defining Intellectual Disability Unconstitutional, Overturns Death Sentence (p 18)
  11. Seventh Circuit: Habeas Petition Challenging § 841 Recidivism Sentence Enhanced with Vacated State Convictions is Not Time-Barred by § 851(e) Statute of Limitations (p 20)
  12. California Court of Appeal Rules 17-Year Delay in SVP Trial Violated Right to Speedy Trial (p 20)
  13. Three Reasons Why the Supreme Court Should Eliminate the Doctrine of Qualified Immunity (p 22)
  14. New York Court of Appeals: Excited Utterance Must Be Based on Personal Observation to Be Admissible as Exception to Hearsay Rule (p 23)
  15. Snarky Facebook Post Not True Threat; Officers Denied Qualified Immunity (p 24)
  16. Sixth Circuit Grants Habeas Relief When Juror Failed to Disclose History of Sexual Abuse in Sexual Assault Case (p 24)
  17. Washington Supreme Court Announces State’s Death Penalty Is Unconstitutional (p 25)
  18. Ninth Circuit Rules Detective’s Persistent Questioning After Invocation of Right to Counsel Entitles California Prisoner to Habeas Relief (p 26)
  19. Texas Court of Criminal Appeals Reverses Conviction for Improper Lesser-Included-Offense Determination (p 26)
  20. Federal Death Penalty Prosecutors Accuse One Another of Destroying Evidence and Other Misconduct in Discrimination Lawsuit (p 28)
  21. First Circuit Orders Resentencing Where Trial Counsel Failed to Secure Three-Level Reduction Under Sentencing Guidelines (p 30)
  22. Colorado Supreme Court Holds Ameliorative Amendments Apply Retroactively to Non-Final Convictions (p 30)
  23. Orlando Police Continue to Test Amazon’s Facial Recognition Software Despite Privacy Concerns (p 31)
  24. Pennsylvania State Senator Sends the Cops to Collect on Overdue Trash Bills Owed to His Company (p 31)
  25. Michigan Supreme Court Announces New Rule for Appointing Expert Witness for Indigent Defendants, No Longer Left to Trial Judge’s Discretion (p 32)
  26. Oregon Enhanced Drug Penalty ‘For Consideration’ Element Requires Proof of Drug Sale or Agreement to Sell (p 32)
  27. Under Fire, Long Beach Police Suspend Use of Self-Deleting Message App (p 33)
  28. Second Circuit Announces Prisoners Have First Amendment Right Not to Snitch or Provide False Information to Prison Officials (p 34)
  29. FBI Admits Vastly Inflating Number of Unsearchable Mobile Devices (p 35)
  30. Chicago Judge Grants No-Money Bond in Murder Case, But Cook County Still Has a Long Way to Go (p 35)
  31. Tenth Circuit Grants Habeas Relief When ACCA Predicate Offense No Longer Qualifies as ‘Violent Felony’ (p 36)
  32. Ninth Circuit Grants Habeas for Appellate Lawyer’s Failure to Raise Denial of Self-Representation Claim (p 36)
  33. Increase in Crime Registries Nationwide Not a Benefit to Society (p 37)
  34. Fourth Circuit Affirms District Court Ruling that Man Committed as ‘Sexually Dangerous’ Should be Released (p 38)
  35. Oklahoma’s Railroading its Citizens into Prison (p 38)
  36. ACLU Report: A Tale of Two NYCs When It Comes to Policing (p 39)
  37. $384 Million Paid Out by New York City in Last Five Years for Police Misconduct (p 40)
  38. Arizona Supreme Court Strikes Law Categorically Banning Bail for Sexual Assault as Unconstitutional (p 40)
  39. Sex Offender Registration Biased Against Blacks (p 41)
  40. New App Makes It Simple for Civilians to Record Police Encounters (p 41)
  41. News in Brief (p 42)
  42. Dallas County Private Bail Hearings Leave People Languishing Behind Bars (p 42)

Eyewitness (Mis)Identification in the Criminal Justice System: Powerful, Persuasive, and Problematic

by Christopher Zoukis

“Our procedure has always been haunted by the ghost of the innocent man convicted.”

—Judge Learned Hand (1923)

“Truth isn’t truth.”

—Rudy Giuliani (2018) 

In 1984, Ronald Cotton was arrested and charged with the knifepoint rape of Burlington, North Carolina, college student Jennifer Thompson ...

Arkansas Supreme Court Reverses Negligent Homicide Conviction Where Evidence Obtained Via Warrantless Blood Draw Used

by Christopher Zoukis

The Supreme Court of Arkansas ruled that an Arkansas statute that allows warrantless blood draws based on implied consent violated the Fourth Amendment when applied to a defendant in a negligent homicide case. The April 26, 2018, opinion reversed the defendant’s conviction and remanded for a new ...

Colorado Supreme Court Announces ‘Preponderance of the Evidence’ Standard for Determining Voluntariness of Consent to Search

by Dale Chappell

The Supreme Court of Colorado held that the burden of proof in determining whether a person voluntarily consented to a warrantless search is a preponderance of the evidence, rather than the higher clear and convincing evidence standard, thereby clarifying a misapplication by the lower courts over the ...

Free at Last! California Modifies Its Felony Murder Law, Helping up to 800 Prisoners Currently Serving Life Sentences

by Ed Lyon

California’s felony murder statute, as originally enacted, is quite draconian in its inclusiveness. A person could be convicted and punished as severely as the primary participant in a felony murder even if the person was not present at the murder scene—they might have been a getaway driver ...

Should the Minimum Age for the Death Penalty be Bumped Up to 21?

The American Bar Association (“ABA”) overwhelmingly adopted a resolution earlier this year for an end to the death penalty for offenders who were younger than 21 when they committed their crime. The ABA cited a growing medical consensus that brain development relevant to decision-making and judgment continues to develop well ...

Habeas Hints: Evaluating and Initiating IAC Claims

by Attorneys Kent Russell and Tara Hoveland

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on state habeas corpus and on “AEDPA” – the federal habeas corpus law ...

Pennsylvania Supreme Court Holds FTA Does Not Affect Independent Speedy Trial Violation by Prosecutor

by Dale Chappell

The Supreme Court of Pennsylvania held that a defendant’s failure to appear (“FTA”) for trial after the prosecution had already violated its duty to provide a speedy trial did not excuse the prosecution’s violation, requiring dismissal of the charges with prejudice.

Daniel Barbour was charged in two ...

Is Blue Privilege at Work in Texas Police Killings?

by Betty Nelander

Demonstrators who protested the police killings of black men in north Texas are crying blue privilege as the officers involved remained free in mid-September. In fact, nine of them who were exercising their First Amendment right to demonstrate outside AT&T Stadium were placed behind bars while officers ...

Warning: Integrity of Judicial Process at Risk

by Sandy Rozek, NARSOL

Testimony from individuals at a sentencing hearing has one primary purpose: to give the court additional information on which to base a sentencing decision.

Victim impact statements focus on the harm done, while statements on behalf of the convicted are intended to paint as thorough ...

Kentucky Supreme Court Declares Law Defining Intellectual Disability Unconstitutional, Overturns Death Sentence

by Dale Chappell

The Supreme Court of Kentucky held that the state statute determining intellectual disability for disallowing imposition of the death penalty was unconstitutional under the Eighth Amendment after recent U.S. Supreme Court decisions, overturning the death sentence of a man on death row for over 20 years ...

Seventh Circuit: Habeas Petition Challenging § 841 Recidivism Sentence Enhanced with Vacated State Convictions is Not Time-Barred by § 851(e) Statute of Limitations

by Christopher Zoukis

The U.S. Court of Appeals for the Seventh Circuit ruled that a federal prisoner convicted of violating 21 U.S.C. § 841, whose sentence was enhanced under 21 U.S.C. § 841(b)(1)(A) due to prior state felony drug convictions, may bring ...

California Court of Appeal Rules 17-Year Delay in SVP Trial Violated Right to Speedy Trial

by Kevin Bliss

The Court of Appeal of California, Second Appellate District ruled that the State was responsible in a case where the systemic breakdown of the public defender system delayed the Sexually Violent Predator (“SVP”) hearing for George Vasquez for 17 years, violating his right to a timely trial ...

Three Reasons Why the Supreme Court Should Eliminate the Doctrine of Qualified Immunity

by Christopher Zoukis

It is a rare issue of Criminal Legal News that does not include an article relating in some way to the doctrine of qualified immunity. The doctrine, which grants police officers and other government officials immunity from civil liability in certain circumstances, rears its ugly head in ...

New York Court of Appeals: Excited Utterance Must Be Based on Personal Observation to Be Admissible as Exception to Hearsay Rule

by Dale Chappell

The New York Court of Appeals reversed a conviction in which an “excited utterance” overheard in the background on a 911 call ostensibly identifying the shooter was used as evidence against a defendant because it could not be established that the person making the utterance personally observed ...

Snarky Facebook Post Not True Threat; Officers Denied Qualified Immunity

by David Reutter

The U.S. Court of Appeals for the Eighth Circuit reversed a grant of summary judgment to police officers who arrested a man for a snarky Facebook post without conducting even a minimal investigation.

James Ross, 20, is an active user of Facebook. One of Ross’ Facebook ...

Sixth Circuit Grants Habeas Relief When Juror Failed to Disclose History of Sexual Abuse in Sexual Assault Case

by Christopher Zoukis

The U.S. Court of Appeals for the Sixth Circuit ruled that a defendant convicted of third-degree criminal sexual conduct did not receive a fair trial because a juror failed to disclose her own childhood sexual abuse. The August 21, 2018, ruling reversed a federal district court’s ...

Washington Supreme Court Announces State’s Death Penalty Is Unconstitutional

by Richard Resch

On October 11, 2018, the Supreme Court of Washington issued an opinion in which the Court struck down the state’s death penalty, announcing: “we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner.” The Court ...

Ninth Circuit Rules Detective’s Persistent Questioning After Invocation of Right to Counsel Entitles California Prisoner to Habeas Relief

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit held that a California prisoner convicted of murder is entitled to habeas relief because a detective continued to interrogate him even after he clearly and repeatedly invoked his right to counsel, and the detective’s persistent unlawful badgering ...

Texas Court of Criminal Appeals Reverses Conviction for Improper Lesser-Included-Offense Determination

by Christopher Zoukis

The Court of Criminal Appeals of Texas reversed an intermediate court of appeals because the lower court improperly determined that “deadly conduct” is not a lesser-included offense of aggravated assault by threat. The top Texas criminal court found that the elements of both offenses are functionally equivalent ...

Federal Death Penalty Prosecutors Accuse One Another of Destroying Evidence and Other Misconduct in Discrimination Lawsuit

by Shawn Musgrave and Brooke Williams, Published by Criminal Legal News with permission from The Intercept, July 18, 2018

A team of federal prosecutors charged with promoting “consistency and fairness” in death penalty cases has been hurling incredible, on-the-record accusations against one another — from neglecting boxes of evidence to ...

First Circuit Orders Resentencing Where Trial Counsel Failed to Secure Three-Level Reduction Under Sentencing Guidelines

by David Reutter

The U.S. Court of Appeals for the First Circuit ruled a defendant was entitled to be resentenced where trial counsel failed to secure a three-level reduction under the federal sentencing guidelines for acceptance of responsibility.

Following a December 17, 2015, search by federal agents of a ...

Colorado Supreme Court Holds Ameliorative Amendments Apply Retroactively to Non-Final Convictions

by Dale Chappell

The Supreme Court of Colorado held that amendments to statutes favorable to defendants apply retroactively to non-final convictions, unless the statute contains language that expressly provides it applies only prospectively, resolving a conflict between statutes and its own precedent.

John Stellabotte owned a towing company, illegally towed ...

Orlando Police Continue to Test Amazon’s Facial Recognition Software Despite Privacy Concerns

The Orlando Police Department in Florida announced that it will continue to test facial recognition software developed by Amazon, despite concerns of abuse by police—and privacy issues.

Amazon’s facial recognition program, called Rekognition, was designed to allow its customers to upload an image and quickly find a match with images ...

Pennsylvania State Senator Sends the Cops to Collect on Overdue Trash Bills Owed to His Company

by Christopher Zoukis

If you live in south-central Pennsylvania and your trash is picked up by Penn Waste, a company owned by Republican State Senator Scott Wagner, you might want to pay the bill on time. If you don’t, police officers may come to your home, inventory your possessions, and ...

Michigan Supreme Court Announces New Rule for Appointing Expert Witness for Indigent Defendants, No Longer Left to Trial Judge’s Discretion

by Dale Chappell

The Supreme Court of Michigan held that a trial judge’s discretion plays no part in appointing an expert witness for a defendant; instead, a defendant must show a “reasonable probability” the expert’s assistance would be needed to prevent a violation of due process. In doing so, the ...

Oregon Enhanced Drug Penalty ‘For Consideration’ Element Requires Proof of Drug Sale or Agreement to Sell

by Mark Wilson

The Supreme Court of Oregon held that the “for consideration” element of a “commercial drug offense” requires proof of a completed drug sale or an existing agreement to sell drugs. The Court rejected the State’s argument that “for consideration” may be proved by evidence of drug possession ...

Under Fire, Long Beach Police Suspend Use of Self-Deleting Message App

by Betty Nelander

The TigerText app that permanently erases messages after a set time period has triggered controversy in Long Beach, California. There, the police department suspended use of it after its use was exposed by the media. What may have been sent using the self-erasing texting app remains unknown ...

Second Circuit Announces Prisoners Have First Amendment Right Not to Snitch or Provide False Information to Prison Officials

by Richard Resch

In its opinion issued on May 9, 2018, the U.S. Circuit Court of Appeals for the Second Circuit held that a prisoner has a First Amendment right not to serve as a prison informant. However, since that right was not clearly established at the time the ...

FBI Admits Vastly Inflating Number of Unsearchable Mobile Devices

For seven months, FBI Director Christopher A. Wray argued that the FBI and other law enforcement agencies needed “exceptional access” to be built into mobile devices, such as cellphones and tablets. To justify his argument, he said that in 2017 the FBI had been “unable to access the content of ...

Chicago Judge Grants No-Money Bond in Murder Case, But Cook County Still Has a Long Way to Go

by Dale Chappell

Cook County Judge William H. Hooks took the unusual step of granting murder defendant Jackie Wilson a no-money bond, letting Wilson go free while he awaits a new trial.

Wilson’s conviction was vacated after Hooks concluded his confession was coerced after former Police Commander Jon Burge and ...

Tenth Circuit Grants Habeas Relief When ACCA Predicate Offense No Longer Qualifies as ‘Violent Felony’

by Christopher Zoukis

The U.S. Court of Appeals for the Tenth Circuit granted a federal prisoner’s 28 U.S.C. § 2255 petition because one of the predicate offenses used to enhance his sentence under the Armed Career Criminal Act (“ACCA”) could no longer qualify as a “violent felony” ...

Ninth Circuit Grants Habeas for Appellate Lawyer’s Failure to Raise Denial of Self-Representation Claim

by Matt Clarke

On July 6, 2018, the U.S. Court of Appeals for the Ninth Circuit reversed a federal court’s denial of a California state prisoner’s petition for a writ of habeas corpus after determining that appellate counsel failed to raise a viable claim under Faretta v. California, 422 ...

Increase in Crime Registries Nationwide Not a Benefit to Society

by Kevin Bliss

New crime registries have been launched around the country, but their value remains to be seen. Research suggests their detriments outweigh their benefits, reveals Jessica Pishko’s article, “Expert: Crime Registries Turn People into Pariahs With ‘Very Little to Lose,’” at TheAppeal.org.

While public sex-crime registries ...

Fourth Circuit Affirms District Court Ruling that Man Committed as ‘Sexually Dangerous’ Should be Released

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 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 ...

Oklahoma’s Railroading its Citizens into Prison

by Ed Lyon

Lynch mobs, vigilance committees, and necktie parties. These terms evoke what many stories refer to as frontier justice, where groups of people operated outside the established frameworks of law and order, sheriffs and courts, to wreak revenge on other people, making such groups outlaws.

In Oklahoma today ...

ACLU Report: A Tale of Two NYCs When It Comes to Policing

by Derek Gilna

A September 2018 report by the New York American Civil Liberties Union (“ACLU”) argues that the New York City Police Department (“NYPD”) continues to target minority communities by following a broken-windows theory of policing.

The theory “posits that if minor crimes are allowed to happen in a ...

$384 Million Paid Out by New York City in Last Five Years for Police Misconduct

by Derek Gilna

New York City police misconduct continues to cost New York taxpayers a lot of money. In the past five years, New York City has paid out $384 million in judgments and settlements to resolve scores of lawsuits, including sums as small as $1,500 and as large ...

Arizona Supreme Court Strikes Law Categorically Banning Bail for Sexual Assault as Unconstitutional

by Dale Chappell

The Supreme Court of Arizona held that a law categorically banning bail for persons charged with sexual assault was facially unconstitutional, debunking the myth that sexual offenders are “inherently” a danger to the public and that an individualized assessment must be done in every case to satisfy ...

Sex Offender Registration Biased Against Blacks

by Kevin Bliss

An Ohio study published in Criminal Justice Policy Review determined that the Sex Offender Registration and Notification Act (“SORNA”) system classifying the risk assessment of sex offenders is prone to racial bias.

A sample of the 673 sex offenders released from prison in Ohio between 2009 and ...

New App Makes It Simple for Civilians to Record Police Encounters

Being pulled over or stopped on the street by police? A new Siri Shortcuts app for iPhone iOS 12 lets users record their experience with police.

Called Police, the Siri Shortcuts app acts like a bodycam. “Once the shortcut is installed and configured, you just have to say, for example ...

News in Brief

Arkansas: Is the Union County Sheriff’s Department making a mocking social statement by having prisoners wear Nike shirts for their mugshots? Colin Kaepernick is the face of the Nike Just Do It Campaign and symbol of the Black Lives Matter movement for his civil rights activism, including kneeling during the ...

Dallas County Private Bail Hearings Leave People Languishing Behind Bars

by Kevin Bliss

Shannon Daves and five others have filed a federal class-action suit against Dallas County, Texas, due to their secret bail hearings that last under a minute. The hearings are not open to the public or press, and bail is set by a predetermined schedule without consideration for ...




 

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