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. Cotton became a suspect in the crime after Thompson picked him out of a photo array, telling detectives, “I think this is the guy.” When Thompson asked the investigators if she did okay, they responded, “You did great.”
Following Cotton’s arrest, detectives showed Thompson a live lineup. Cotton was the only person in the lineup who also appeared in the photo array. Thompson was hesitant but ultimately told detectives that Cotton “looks the most like him.” When Thompson was told that Cotton was the same person she had identified in the photo array, she described feeling a “huge amount of relief.”
At trial, Thompson told the jury that she was “absolutely sure” that Cotton was the assailant. Cotton denied any involvement in the crime.
On the sole basis of Thompson’s identification, Cotton was convicted and sentenced to life in prison, plus 54 years. Nearly 11 years ...
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 trial, without the improperly obtained blood evidence.
On September 15, 2015, Sammy W. Dortch, Jr. crashed the vehicle in which he and friend Matthew Anderson were riding. Anderson died at the scene. During the crash investigation, Independence County Sheriff’s Deputy Aaron Moody detected signs of intoxication in Dortch, who admitted that he had been drinking. Moody transported Dortch to the emergency room, where he presented him with the Arkansas “implied consent” form pursuant to A.C.A. § 5-65-202.
Dortch signed the form, and a blood draw was performed. Tests revealed that Dortch had a blood alcohol level of .139. He was arrested and charged with negligent homicide, driving while intoxicated, and reckless driving. Prior to trial, Dortch moved to suppress the blood evidence and to declare the implied consent statute unconstitutional. The trial judge denied both motions, and Dortch was convicted. He was sentenced to 15 years in prison ...
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, a lookout, or merely helped plan an offense that resulted in an unplanned death.
California is among 46 states with a felony murder statute as part of its penal code and a subset of 24 that can prosecute it as a capital crime. In 1983, its supreme court opined the law should be abolished stating that it “anachronistically resurrects from a bygone age a ‘barbaric concept.’” Thirty-five years later, in 2018, that court’s hope was finally realized by the people of California in Senate Bill 1437.
The very first felony murder suspect to benefit from Governor Jerry Brown signing S.B. 1437 into law was Neko Wilson. He helped to plan the armed robbery of a Kerman couple in their home, where they managed a marijuana growing operation. Before the robbery, Wilson had second thoughts and opted out of the robbery altogether. His five co-defendants proceeded with the robbery ...
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 past 40 years.
After Thomas Delage was searched by the police and drugs were found in his backpack, he moved to suppress the evidence, arguing he never consented to the search. The police, however, claimed he did. The trial court concluded that “it is probably more likely true than not there was consent under the circumstances given” and denied Delage’s motion. The court of appeals, however, remanded on whether Delage’s consent was voluntary, with instructions to consider whether the State had proven by “clear and convincing evidence” his consent was voluntary. The Colorado Supreme Court granted the State’s petition for certiorari and held that the lower standard preponderance of evidence applies in determining whether consent to search is voluntary.
The U.S. and Colorado Constitutions forbid unreasonable searches, which includes warrantless searches. Evidence from such searches must be excluded when challenged in court. One exception, however, is when a person ...
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 into a person’s early 20s.
The U.S. Supreme Court recognized in Roper v. Simmons, 543 U.S. 551 (2005), that “the qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Nevertheless, the Court said “a line must be drawn,” arbitrarily holding that age 18 is that line. The Court’s decision removed 72 prisoners from death rows whose crimes were committed before they were 18.
But Kentucky trial judge Ernesto Scorsone, disagreed, holding in 2017 that Kentucky’s death penalty law was unconstitutional for defendants who committed their crime before age 21. “Knowing what we know now, one could’ve made the very same arguments about 18-, 19-, and 20-year-olds that were made about 16- and 17-year-olds in Roper,” he said. “If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling.”
An August 2018 article by ...
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 that governs habeas corpus practice in courts throughout the United States.
INEFFECTIVE ASSISTANCE OF COUNSEL
Evaluating and Initiating IAC Claims
One of the major advantages of ineffective assistance of counsel (“IAC”) claims on habeas corpus is that they are usually the most reliable way to bring new evidence before the court that wasn’t considered when the defendant lost on trial and on direct appeal. Therefore, and because the most successful habeas corpus claims are ones that bring “something new to the table,” when I’m evaluating a potential habeas case, I always consider potential IAC.
Here, in our third in a series of columns on IAC, are some Habeas Hints to help you decide whether your case contains the key elements necessary to support an IAC claim: deficient performance (serious attorney error) and prejudice (so what?).
1. Make up a “Working List” of trial counsel’s most important errors, rather ...
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 criminal cases in August 2003. When he failed to appear for his trial in October 2004, the trial court issued a warrant. Ten years later, he was arrested on a different charge and appeared in court to answer for the 2003 charges. He moved to dismiss, citing the Commonwealth’s hard rule that a defendant must be brought to trial within 365 days from the date a written criminal complaint is filed. The prosecutor admitted at the hearing on the matter that the trial scheduling process at the time of Barbour’s 2003 charges was very informal and that he “would have” scheduled the trial for the April 2004 term but said he “didn’t know” for sure. The trial court said it was “not concerned with what ‘would have’ happened,” only with “what did happen.” Because of the Commonwealth’s “outstanding negligence in failing to account for the time that had ...
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 involved in the deaths of O’Shae Terry and Botham Jean were not.
In the first case, Terry was fatally shot after being stopped for an expired registration tag September 1, 2018, in Arlington, Texas. Bodycam footage shows Terry and friend Terrance Harmon being pulled over. The officer, and a backup officer, smelled marijuana inside the SUV. When one of the men started to roll up the windows and Terry started the car, an officer was heard saying, “Stop.” The officer “stepped onto the SUV’s running board and grabbed the top of the partially-rolled up window as Terry began to drive away,” nbcdfw.com reports. “Once the vehicle appeared to be in motion, the officer pulled his gun and fired five shots into the SUV, striking Terry” before falling off the running board and being treated for minor injuries. The officer who killed Terry has not been identified and ...
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.
Robert Woodall pleaded guilty to the kidnapping, rape, and murder of a teenage girl more than 20 years ago. He was sentenced to death. At the time of his sentencing, state law contained a bright-line rule: A person is not intellectually disabled if his or her IQ score was above 70. Today, the legal landscape regarding intellectual disability and the death penalty has changed, so Woodall filed for postconviction relief based on the new rules. The trial court, however, denied Woodall’s motion without a hearing, and he appealed to the Kentucky Supreme Court.
The Eighth Amendment prohibits the execution of a person with an intellectual disability because it is considered cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304 (2002). In Hall v. Florida, 134 S.Ct. 1990 (2014), the U.S. Supreme Court announced that Florida’s bright-line rule that a person whose IQ is above 70 is ...
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 a picture as possible of the person, with an appeal to mitigating circumstances.
A sentencing hearing recognizes that an individual is more than the crime for which he or she has been convicted, more than the harm that he or she has inflicted on another or on society. People are encouraged to give testimony that better gives the court a feel for the totality of the person about to be sentenced.
Kristie Torbick, through a plea agreement, was convicted in early July 2018 for the sexual assault of a student, one whom Ms. Torbick in her position as a guidance counselor at Exeter High School in Exeter, New Hampshire, was counseling.
At her plea-and-sentencing hearing, colleagues and friends did what colleagues and friends do at sentencing hearings: Some had written letters; others spoke on her behalf. They were not supporting her choice to commit a crime. They were not supporting ...
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 under the Due Process Clause of the Fourteenth Amendment.
Vasquez was convicted of lewd or lascivious acts on a child younger than 14 years of age in 1995. Before he was released from his 12-year sentence, the State of California (the “People”) filed a petition to commit Vasquez as an SVP under Welfare & Institutions Code § 6600 et seq. The petition was filed on September 7, 2000, and Vasquez was detained in state hospitals, where he languished for 17 years, awaiting trial on the petition.
When the People first petitioned to have him committed, his case was assigned to Deputy Public Defender Michael Suzuki, who represented him for the first seven years. After his departure, six different attorneys were appointed to represent Vasquez. During his nearly 17-year wait for a trial on the petition, dozens of psychological evaluations were conducted, and there were 30 continuances.
Funding for the public ...
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 a 28 U.S.C. § 2255 habeas petition alleging that the prior convictions were vacated in state court, regardless of the five-year statute of limitations found in § 851(e) because he isn’t challenging the validity of the prior convictions, but rather their very existence. The May 3, 2018, opinion reversed the district court’s finding otherwise.
In 2006, Jesus Arreola-Castillo was found guilty of conspiracy to distribute 1,000 kilograms or more of marijuana in violation of §§ 841(a)(1) and 846. The government filed an information alleging that he had two prior state convictions for drug felonies, and the trial court sentenced him to a mandatory term of life in prison pursuant to the recidivism provisions of 21 U.S.C. § 841(b)(1)(A).
After his conviction in federal court, Arreola-Castillo challenged his prior convictions in state court. Because he received ineffective assistance of counsel ...
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 virtually every case in which a citizen was beaten, tased, run over, shot, or otherwise brutalized by a cop.
Some legal commentators say it’s time to do away with this powerful protection, which allows law enforcement officers to hurt people and get away with it. In a Reason.com article, Joanna Schwartz made a three-prong argument as to why it is time to cancel qualified immunity.
Qualified immunity shields government officials from civil liability for their actions unless they violate a federal statutory or constitutional right and the unlawfulness of their conduct was clearly established at the time. District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).
The doctrine was first announced by the Supreme Court in Pierson v. Ray, 386 U.S. 547 (1967). There, the Court said the common law “defense of good faith and probable cause” is available to officers in an action brought under ...
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 the incident, and none of the victims was able to identify the defendant as the shooter.
“Yo, it was Twanek, man!” someone exclaimed in the background during a 911 call reporting a shooting. That and a fingerprint on the alleged getaway vehicle were what the State used to convince a jury that defendant Twanek Cummings shot and wounded three people that day. He was convicted of assault, attempted assault, and possession of a weapon. Cummings argued on appeal that because there was no evidence the unidentified speaker in the background on the 911 call personally observed the shooting, admission of the statement at trial was error. The Appellate Division rejected that argument and affirmed the trial court’s judgment. The New York Court of Appeals granted Cummings’ leave to appeal.
Hearsay is generally inadmissible because it “deprives the defendant of the right to test the accuracy and trustworthiness of the ...
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 friends posted an image on January 25, 2015, that showed a number of different firearms below the title, “Why I Need a Gun.” Above each gun was an explanation for what it could be used – for example, above a shotgun: “This one is for burglars and home invasions;” above a rifle with a scope, “this one is for putting food on the table;” and above an assault rifle, “this one for self-defense against enemies foreign and domestic, for preservation of freedom and liberty, and to prevent government atrocities.”
Ross, an advocate of gun control measures, interpreted the post as advocating against such measures. In response, Ross commented on the post: “Which one do I need to shoot up a kindergarten?” He then logged off Facebook and went to bed.
The post was passed around and caught the attention city of Jackson, Missouri, police officers ...
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 decision to the contrary and remanded the case with instructions that the Michigan state court undertake further proceedings.
Warren Edward English III was convicted of third-degree criminal sexual conduct after he assaulted a 17-year-old acquaintance while she was asleep at his home during a party. After his trial, English learned that “Juror A” had been sexually abused by her father at age eight. Juror A did not disclose the abuse during voir dire.
Based on this new information, English moved for a new trial. He argued that he was denied his right to an impartial jury. The trial court granted the motion, but the Michigan Court of Appeals reversed. The Michigan Supreme Court denied review. English then filed a motion for postconviction relief in state court, which was denied. Both the Michigan Court of Appeals and the Michigan Supreme Court affirmed the denial of relief.
English then filed the 28 ...
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 continued that in light of “the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.” Thus, “it violates article I, section 14 of our state constitution,” the Court stated.
In 2001, Allen Gregory was convicted of aggravated first degree murder and sentenced to death. Following multiple appeals and remands, the Washington Supreme Court agreed to hear his current appeal. The principal issue before the Court was whether the state’s “death penalty is imposed in an arbitrary and racially biased manner.”
Gregory argued that the state’s death penalty violated both the Washington and U.S. Constitutions. The Supreme Court resolved the issue under state law without having to rely on federal law. As the Court noted, it has a duty to attempt to resolve constitutional questions by turning first to the state Constitution before turning to the U.S. Constitution ...
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 and sent the case back to the trial court to determine whether there was enough evidence for a jury to have found the defendant guilty only of the lesser-included offense of deadly conduct.
In September 2014, Anthony Robert Safian nearly ran over a police officer as he was being stopped for suspicion of drug activity. After nearly taking the door off of Officer Pearce’s patrol car, Safian sped off. A high-speed chase ensued in which Safian drove into oncoming traffic and collided with another vehicle, which ended the pursuit.
Safian was charged with aggravated assault on a public servant (by the use or exhibition of a deadly weapon), evading arrest or detention while using a vehicle, and possession of less than a gram of heroin. At the close of evidence, Safian requested an instruction on deadly conduct as a lesser-included offense to the charged offense of aggravated assault on a ...
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 eventually resulted in the prisoner waiving his right and providing incriminating statements.
The Court ruled that he established a sufficient showing of prejudice because there was grave concern that his improperly admitted statements affected the jury’s verdict.
Daniel Martinez was charged with the murder of a rival gang member during a neighborhood dispute in December 2005. Martinez was arrested and interrogated by detective Navarro. After obtaining some biographical information and informing Martinez of why he was present, Navarro read his Miranda rights, which resulted in Martinez stating that he wanted to contact his attorney. Rather than ending the questioning at that point as required, Navarro continued a dialogue that eventually resulted in Martinez waiving his right to counsel and making incriminating statements.
Over Martinez’s objection, the trial court allowed his incriminating statements into evidence. He was convicted as charged and sentenced to 40 years to life in prison. His appeal ...
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 destroying interview notes — and defense attorneys want to know why this is the first they’re hearing about this alleged misconduct.
Publicly, prosecutors typically are tight-lipped about missteps. But a recent internal dispute and civil lawsuit prompted some members of the Capital Case Section to speak up about serious misconduct in some death penalty cases.
In 2016, federal prosecutor Jacabed Rodriguez-Coss sued the Justice Department, alleging supervisors in the Capital Case Section discriminated against her and retaliated when she filed a complaint. A judge tossed out her lawsuit in late June, according to court records, and she intends to appeal.
While Rodriguez-Coss’ lawsuit had nothing to do with how federal prosecutors behaved in a courtroom, both sides dredged up alleged misconduct in how they handled death penalty cases.
It’s rare for details like these to come out publicly, and even more unusual for prosecutors to be pointing the finger. Even ...
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 home in Puerto Rico, Rodney Robles-Pabon (“Robles”) was found hiding in a closet. Agents also found drugs, currency, cellphones, AK-47 ammunition, high-capacity magazines, and a chip to modify a Glock firearm. A search of a car outside the house uncovered Robles’ passport and a Glock.
Robles entered into a plea agreement on charges of conspiracy to possess with intent to distribute cocaine and marijuana and possession of a firearm in furtherance of a drug trafficking crime. He was sentenced to a total of 93 months.
The July 22, 2006, plea agreement contained guideline calculations, one of which endorsed a decrease by two levels for acceptance of responsibility, ignoring the three-level reduction under the governing guideline. Relying on the 2015 version of the guidelines, the district court approved a two-level reduction for accepting responsibility. On appeal, Robles asserted that trial counsel was ineffective for failing to secure the three-level reduction, error ...
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 vehicles and demanded payment. He was charged with felony theft. At the time of his illegal scheme, it constituted a class 4 felony. Prior to his conviction, the General Assembly amended the theft statute by making it a class 5 felony, with a correspondingly lower sentence. The amendment did not indicate whether it applied prospectively or retroactively.
The trial court did not apply the amendment to his conviction, which could have reduced his sentence by half. On appeal, Stellabotte raised for the first time that the favorable amendment applied retroactively to him, and a divided court of appeals agreed. The Colorado Supreme Court granted the State’s petition for a writ of certiorari.
In People v. Thomas, 525 P.2d 1136 (Colo. 1974), the Colorado Supreme Court held that ameliorative amendments to a statute that do not indicate whether they’re prospective or retroactive apply retroactively to defendants whose convictions are not ...
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 eventually sell them at auction to cover the bill.
That’s all completely legal. When a creditor sues a debtor and obtains a judgment, the creditor can use a “writ of execution” on personal property in order to collect. Penn Waste has obtained 263 such writs since the beginning of 2016. According to an analysis of court records by the York Daily Record/Sunday News, the amount due on most of the bills ranged from $150 to $250.
Joe and Christina Kirby learned about writs of execution the hard way. They fell behind on the bills because of Christina’s illness. One of the bills was for $160, owed to Penn Waste. When the company didn’t get paid, they went to court. Then they sent the police to the Kirby home to collect.
A member of the York County Sheriff’s Office inventoried the two cars in the driveway and made his way ...
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 in a database created by the customer.
However, law enforcement has found a new twist for the technology.
Police and city officials in Orlando said in a statement that using Amazon’s software would allow police to locate a fugitive before he commits another crime, identify a sex offender hanging around schools, or find a missing child.
“The suspects in these examples would have their images entered into the system and perhaps could be spotted by one of the many cameras, and never allowed to get anywhere near the victims or a large gathering,” officials said. The database would compare an uploaded image to images captured by eight surveillance cameras around the city.
“Amazon Rekognition is primed for abuse in the hands of governments,” a letter by 34 civil rights groups, including the ACLU, sent to Amazon CEO Jeff Bezos, warned. “This product poses a grave threat to communities ...
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 Court overturned its prior decisions holding to the contrary.
For nearly two decades, the strangulation of Tanya Harris sat cold—until DNA evidence taken from her body pointed to Johnny Kennedy, who was already in prison for admitting to strangling another woman in the same manner in 1996. Kennedy’s defense counsel requested a DNA expert to be appointed by the court to “zealously confront the witnesses and evidence called in the prosecution’s case.” The trial court, however, denied counsel’s request: “I’m not going to appoint [an expert] for that,” the judge said. “You can talk to him, you can read up on him and go to the conference,” but the judge refused to appoint an expert to help counsel.
Kennedy was convicted of first-degree premeditated murder, and he appealed. The Court of Appeals, in a split opinion, affirmed, holding that the trial court did not “abuse its discretion” ...
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 with intent to sell.
Oregon law provides enhanced penalties for a “commercial drug offense” (“CDO”). Under that law, possession, delivery, or manufacture of certain controlled substances is a CDO if it is accompanied by three of eleven factors enumerated in ORS 475.900(l)(b).
During a traffic stop of Jose Roberto Fierro Villagomez, police discovered 141.98 grams of methamphetamine divided into separate bags, more than $4,000 in cash, three cellphones, and a ledger of presumed drug records. Villagomez was charged with possession and delivery of methamphetamine.
Seeking an enhanced sentence, the State also alleged on the basis of four CDO factors that Villagomez’s possession and delivery constituted a CDO under ORS 475.900(l)(b). Those factors were: (1) delivery of methamphetamine “for consideration,” (2) possession of $300 or more in cash, (3) possession of drug records, and (4) possession of eight grams or more of ...
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. Unlike many smartphone texts, these are not recoverable.
The confidential messaging system could be a way to conceal evidence, although the city has denied doing so or other “potentially incriminating information being disclosed to courts,” an Al Jazeera investigation revealed.
“Serving and former officers told Al Jazeera that police-issued phones had the software installed on them and that it was used to share details of police operations as well as sensitive personnel issues,” aljazeera.com reported September 19, 2018. “Two officers said supervisors told them to use the app to have conversations that would not be discoverable.”
“Use of the application began when the Police Department transitioned to iPhones, which did not have a built-in secure communication feature sufficient for the needs of the Department,” according to a statement by the city on September 18, 2018. “The primary purpose of the Tiger Connect [TigerText] application was ...
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 prisoner was subjected to retaliatory conduct by prison officials, the Court ruled that they were entitled to qualified immunity.
In April 2010, Mark Burns began working in the commissary at Coxsackie Correctional Facility in New York. On May 19, he was struck in the face and neck by a can that had fallen from a high shelf. He reported the injury and signed a medical waiver.
According to Burns, he was subsequently approached by Sergeant Noeh and Captain Shanley. They claimed that Burns’ wife called and reported that he had been cut by a fellow prisoner. Burns denied it and told them about the can. Ignoring his explanation, Shanley advised that he intended to recommend Burns for placement in Involuntary Protective Custody (“IPC”). But Shanley offered Burns the chance to avoid IPC if he agreed to serve as the guards’ snitch. If he didn’t agree, Shanley threatened that Burns would ...
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 his subordinates physically coerced Wilson to confess. Illinois wants to try him again for the third time.
Despite General Order 18.8A, by Cook County Chief Judge Timothy Evans, ordering judges to stop putting people in jail simply because they cannot afford a money bond, the county has a long way to go.
About 450,000 people across the U.S. are in pretrial incarceration, with 90 percent of them in jail only because they cannot afford to pay a money bond.
Around 2,000 of those remain in jail in Cook County, notwithstanding Evans’ 2017 order. Illinois law allows judges to hold someone in pretrial detention but only if the State meets its burden of proving the person is a threat to the public. Instead, judges routinely set high money bonds, usually without a hearing. This unconstitutional practice keeps the poor in jail, simply because they cannot find a ...
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 approximately 7,800 mobile devices using appropriate and available technical tools, even though there was legal authority to do so.”
He referred to the rapid increase in the number of unsearchable devices the bureau was encountering as “Going Dark,” claiming it would eventually result in law enforcement being unable to access any mobile device even with a valid court order.
The figure of 7,800 unsearchable devices in 2017 has been questioned since it was asserted. The Electronic Frontier Foundation noted that it was an unexplainable increase over the 880 unsearchable mobile devices the FBI said it encountered in 2016.
Nonetheless, Wray and then-U.S. Attorney General Jeff Sessions continued to cite the higher number as justification for the “exceptional access” they sought as late as March 2018.
A May 22, 2018, Washington Post article revealed that the FBI has known the figure of 7,800 mobile devices ...
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” post-Johnson v. United States, 135 S. Ct. 2551 (2015). The June 14, 2018, ruling overturned a district court’s contrary finding and remanded for resentencing.
In 2004, Chance Wade Driscoll pleaded guilty to being a felon in possession of a firearm. Because his Presentence Investigation Report noted that he had one previous drug conviction and two previous burglary convictions, the sentencing court applied the ACCA and sentenced Driscoll to the 15-year mandatory minimum.
On June 26, 2015, the U.S. Supreme Court decided Johnson. In Johnson, the Supreme Court held that the “residual clause” of the ACCA is unconstitutionally vague. Driscoll filed his § 2255 motion within one year of the Johnson decision. He argued that Johnson rendered his ACCA sentence void.
The district court denied Driscoll relief. That court found that it was not clear that the sentencing court utilized the residual clause to enhance Driscoll’s sentence. As such, the ...
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 U.S. 806 (1975), for denial of the right to self-representation.
Dwight Tamplin Jr. was charged in California state court with being a felon in possession of a firearm with a street gang enhancement. Over the following nine months, he was cycled through three public defenders. He then filed a waiver of counsel and motion to represent himself that was granted.
Tamplin represented himself for four months. With a trial scheduled a month away, he appeared in court with privately retained attorney Greg Morris, who asked for a continuance to file a motion to substitute counsel but never filed one. Two weeks before the scheduled trial, the court informed Tamplin that Morris had been disbarred and could not represent him. Tamplin said he wanted to continue to represent himself and signed a second waiver of counsel.
A week later, the court held a hearing on Tamplin’s self-representation. Tamplin explained that ...
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 are mandated by federal law, individual states have added new crime registries to the mix. Victims’ rights advocates view them as community protection tools, while critics see them as a way to control people who have already served their time. The registries began in 1994 with then-President Bill Clinton signing a federal crime-control bill into law. It addressed the abduction and murder of 11-year-old Jacob Wetterling in 1989 by requiring states to keep a list of people convicted of sex crimes against children. In 1994, Megan’s Law expanded the registries to be opened to the public, and since then, different registries have been on the rise.
Five states—Montana, Oklahoma, Kansas, Illinois, and Indiana—have violent offender registries. Tennessee and Indiana have one for methamphetamine. There have been drunken driving registries in many states, registries for violent crimes against animals or children in others, and even career offender registries, such as the ...
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, 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 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 commitment, but after several appellate reversals, it certified Wooden as sexually dangerous ...
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, an inverse group of people are obtaining similar results within the established framework of that state’s law-and-order infrastructure through official misconduct that allows for the use of false accusations, fantasy-level junk science, torpedoing public disclosure requirements, and completely ignoring a tiny little detail called due process, making these such groups in-laws.
From 1993 to the present, 35 wrongful convictions in Oklahoma have been uncovered and exonerated. Fifteen of those occurred in the past 10 years.
Henry Wade, Dallas County, Texas’s former district attorney for 28 years, achieved notoriety for publically stating that “Guilty ones [defendants] are easy to convict [of crimes]. It takes real effort to convict the innocent.” The late Oklahoma County District Attorney Bob Macy, apparently an adherent of Wade’s disturbing witticism, was responsible for 11 of Oklahoma’s 35 wrongful convictions. He was not alone in his efforts.
Forensic psychiatrist James Grigson, known as “Doctor Death,” ...
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 neighborhood without recourse, and signs of neglect like literal broken windows are visible, then it will lead to more disorder and eventually to serious crime.”
In reality, it is “used as a cover” to discriminate, says the report, “Shattered: The Continuing, Damaging, and Disparate Legacy of Broken Windows Policing in New York City.”
The ACLU noted that stop-and-frisk, which was the “practice of stopping and questioning people in public and subjecting them to searches of their bodies, often invasively and often without cause—had become widespread under the Michael Bloomberg administration as did public anger over the tactic.” An ACLU lawsuit stopped that practice, at least on paper, but it apparently did not change the mindset of the NYPD or reduce the apprehension of many innocent minorities, who continue to adjust their daily lives to avoid contact with the police.
In 2016, the ACLU surveyed almost 1,500 ...
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 as $13 million, with the majority of resolved cases ranging from $5,001 to $25,000.
In that time, 11,404 suits were filed against the city, and settlements were paid to about 5,800 people.
Mayor Bill de Blasio has attempted to cut down on the opportunities of those he termed “ambulance chasing lawyers,” by reining in “stop and frisk” policies that had greatly increased the number of citizen complaints in the previous administration, but payouts have continued to increase. De Blasio said when he came into office in 2015, “The court process is long, it’s complicated, it’s costly. But we’ll do that to send a clear message that this (trend) has got to stop.”
However, continuing instances of police misconduct continue to result in 530 of what plaintiff’s lawyers’ term “nuisance” settlements of $5,000 or less, in the past five years, despite the city attempting ...
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 due process.
In 2017, Guy Goodman was charged with sexually assaulting a minor in 2010, after she reported that he touched her genitals beneath her underwear while she slept. Goodman admitted he did so, and the superior court, over the State’s objection, granted bail at $70,000 with certain conditions. The State appealed, and the court of appeals vacated Goodman’s bail, ruling that “sexual assault remains a non-bailable offense.” The Arizona Supreme Court granted review and vacated the court of appeals’ decision.
The question before the Supreme Court was whether the categorical denial of bail for every person charged with sexual assault, when the proof is evident or the presumption great as to the charge, violates due process. Although Goodman pleaded guilty and was sentenced while this case was pending, the Court still decided to address the matter because it is “an issue of statewide importance” that is “capable ...
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, ‘Hey Siri, I’m getting pulled over.’ Then the program pauses music you may be playing, turns down the brightness on the iPhone, and turns on ‘do not disturb’ mode,” businessinsider.com reports.
It uses the phone’s front-facing camera to discretely video record one’s interactions with the cops and “texts a predetermined contact that you’ve been pulled over,” according to businessinsider.com. It “also sends a video of the encounter to your contact,” by text, and uploads it to Dropbox.
For any police encounters that turn ugly — such as a shooting, an altercation or verbal abuse — the app, developed by Reddit user Robert Petersen, could prove helpful.
“I have noticed in reading news articles and seeing reports on TV that in many cases you end up with police saying one thing happened and the citizen being pulled over saying another,” Petersen told USA Today ...
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 2011 was studied, and the researchers found that African-Americans were two-and-a-half times more likely to be inaccurately designated as high risk than their Caucasian counterparts. The assessments were state sponsored and overly weighted toward prior criminal records, argued authors Bobbie Tickner of Valdosta State University and Jessica J. Warner of Miami University Regionals.
SORNA, established by the Adam Walsh Child Protection and Safety Act of 2006, is an offense-based classification system assigning one of three tier categories to offenders according to “dangerousness.” It is determined by prior offenses and severity of current conviction. This is used to determine the level of supervision sex offenders are subjected to, ranging from monitoring by local law enforcement to restrictions on where they may live. Some version of this law now exists in every state.
After the study, the researchers found that about 85 percent of the individuals classified in the highest tier ...
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 National Anthem. According to thefreethoughtproject.com, “Shaun King tweeted out a collage of photos he says were given to him by a source from within the Union County Sheriff’s department. They were accompanied by the following description: ‘The Sheriff in Union County, Arkansas is putting Nike t-shirts on people they arrest and making them wear them during mugshots. Source says it is to mock Nike and Colin Kaepernick. Disgusting.’” Union County Sheriff Ricky Roberts denies this. In a statement sent to CBS MoneyWatch, he said the garb is given to jail detainees who don’t have “‘proper attire during the booking process.’ The intent was not to ‘demean or disparage’ anyone accused of a crime.”
California: A judge has sentenced former Los Angeles police officer Robert Cain to two years in prison for the statutory rape of a 15-year-old in the department’s cadet program. Cain received credit for ...
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 the defendants’ circumstances or financial means.
The suit alleges that Dallas detainees are not receiving a meaningful opportunity to challenge bail. Many pleaded guilty at their first court dates, so they could receive a sentence of time served and obtain release.
The American Civil Liberties Union of Texas and the Civil Rights Corps of Washington, D.C. represent Daves, who has been joined by the Texas Organization Project and Faith in Texas, two advocacy organizations helping challenge private bail hearings. They claim that Dallas County’s current procedure jails the poorest people of the county without serious inquiry into their ability to pay.
Daves is a 47-year-old unemployed, homeless woman who was charged with misdemeanor shoplifting. After a 20-second hearing, bail was set at $500. Daves could not afford to pay and was placed in 24-hour solitary confinement until the court date because she was transgender.
Daves said, “Judges are only ...