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Prisoner Education Guide

Criminal Legal News: January, 2018

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Volume 1, Number 2

In this issue:

  1. U.S. Supreme Court Decision Temporarily Throws Florida’s Death Machine Into Disarray and Prompts Change to State’s Death Penalty (p 9)
  2. From the Editor (p 10)
  3. Ninth Circuit: Discovery Rule Applies to Judicial Deception Claims (p 10)
  4. Ninth Circuit Reverses Summary Judgment on Unreasonable Seizure Claim (p 11)
  5. Supreme Court Holds Texas May Not Use Outdated Standards to Determine Intellectual Disability in Death Penalty Cases (p 12)
  6. New York City Quietly Assembling Massive Unregulated DNA Database (p 13)
  7. U.S. Supreme Court Rejects Habeas Relief Citing AEDPA Deference (p 14)
  8. Texas Attorney General Rules Civilly Committed Sex Offenders Entitled to Vote by Mail Ballot (p 15)
  9. Tennessee Supreme Court Clarifies Split Confinement Sentence Procedures (p 16)
  10. Sentence Vacated Due to Improper Enhancement Under Sentencing Guidelines (p 16)
  11. Idaho Supreme Court: Officer Must Intend to Arrest Before Conducting a Search Incident to Arrest (p 17)
  12. DOJ Ends Unconstitutional Investigative Holds by Louisiana Police (p 18)
  13. In Case of First Impression, Louisiana Supreme Court Holds Public Records Restriction Inapplicable to Defense Attorney’s Request for Client’s Files and Awards Fees (p 18)
  14. New York Becomes First State to Require Trial Judges to Remind Prosecutors of Their Brady Obligations During All Criminal Trials (p 19)
  15. Oregon Supreme Court Announces Default Rule When Plea Agreement Silent About Reprosecution Upon Subsequent Death of Victim (p 20)
  16. Baltimore Police Department’s Misconduct Scandals Result in Hundreds of Dismissals and Indictment of Eight Officers (p 21)
  17. Idaho Supreme Court Reinstates Class Action Against the State Alleging Inadequate Public Defense System (p 22)
  18. Suffolk County District Attorney and Aide Indicted for Beating and Coverup (p 22)
  19. New California Law Safeguards Minors’ Rights When in Police Custody (p 25)
  20. What Do You Get for Kicking Handcuffed Suspects? Promoted and $130,000 Annual Pension for Life (p 26)
  21. $450,000 Settlement to Whistleblower in Case of Framing (p 26)
  22. Georgia Supreme Court Grants New Trial After Trial Transcript Lost (p 27)
  23. Trump Administration Kills Obama’s Forensic Evidence Reliability Reform Efforts (p 28)
  24. Mississippi Supreme Court Upholds Lawyer’s Contempt Sanction for “Improper” Argument (p 29)
  25. Ninth Circuit Suppresses Gang Affiliation Evidence Obtained Without Miranda Warnings (p 30)
  26. Seventh Circuit: No Federal Court Jurisdiction to Resolve State Executive and Legislative Branch Disputes (p 30)
  27. Prosecutors in New Orleans Prosecute Public Defenders for Doing Their Job (p 30)
  28. Criminal Cops: Tracking Crimes Committed by Police Officers (p 33)
  29. Eighth Circuit Reverses Summary Judgment on Ferguson Protestor’s Excessive Force Claim (p 34)
  30. News in Brief (p 35)

U.S. Supreme Court Decision Temporarily Throws Florida’s Death Machine Into Disarray and Prompts Change to State’s Death Penalty

by David M. Reutter

Following the 2016 U.S. Supreme Court ruling in Hurst v. Florida, 136 S. Ct. 616 (2016), which concluded that Florida’s death penalty sentencing scheme violated the Sixth Amendment and was thus unconstitutional, the state’s death machine came to a screeching halt and was in complete disarray for several months.

In Hurst, the Supreme Court held that Florida’s death penalty sentencing scheme was unconstitutional because it allowed a sentencing judge on his or her own to find aggravating circumstances, independent of the jury’s findings, necessary for the imposition of the death penalty. The Court stated, “The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfinding. Florida’s sentencing scheme…is therefore unconstitutional.”

The Court’s declaration that Florida’s death penalty sentencing procedure was unconstitutional prompted the state legislature to pass a new law. The new death penalty statute required jurors to make factual findings and 10 of the 12 jurors had to agree to the imposition of the death penalty. However, in October 2016, the Florida Supreme Court in Perry v. State, 210 S.3d 630 (Fla. 2016), concluded ...

From the Editor

by Richard Resch

Happy New Year and welcome to Criminal Legal News (“CLN”). If you’re reading this, you’re likely familiar with the Human Rights Defense Center (“HRDC”) and its companion publication, Prison Legal News (“PLN”). We’ve sent the first issue of CLN to all current PLN subscribers and associates. Starting with the February 2018 issue, we’ll be providing review samples of CLN to a much wider audience, including many readers who may not be familiar with HRDC or PLN. Accordingly, the February issue will include a similar welcome message from me but explaining in detail who we are, our mission, publication format, and issues covered. So for now, I’ll just talk a little about CLN’s content areas. 

In general, CLN has the same basic layout and features as PLN, so it will seem familiar to PLN readers. CLN contains the same timely and relevant legal news and features as PLN, but CLN provides practical legal news you can use about the criminal justice system prior to confinement and post-conviction relief. CLN is dedicated to educating and informing readers about their constitutional rights and relevant developments in criminal and constitutional law as they pertain to ...

Ninth Circuit: Discovery Rule Applies to Judicial Deception Claims

by Mark Wilson

Applying the Discovery Rule in determining when the applicable two-year statute of limitations (“SOL”) begins to run on “judicial deception” claims, the U.S. Court of Appeals for the Ninth Circuit held that a claim brought three-and-a-half years after a search warrant was executed was not time-barred because the limitations period commences “when the underlying affidavit is reasonably available,” not at the time of the alleged illegal act, i.e., the search.

After Gary Klein’s 41-year-old wife died unexpectedly, Beverly Hills Police Department investigators suspected Klein may have poisoned her. A search warrant was executed on August 3, 2009, but police refused to show Klein the warrant or supporting affidavit because the documents were sealed. Criminal charges were never filed against him.

Klein spent years after the search making numerous unsuccessful attempts to obtain the search warrant and supporting affidavit. He repeatedly requested that the police department disclose those documents. When they refused, Klein hired a criminal defense attorney to petition the Los Angeles Superior Court to unseal the warrant. The court denied the petition on January 12, 2012, ruling that unsealing the warrant would “interfere” with the ongoing investigation.

Nearly three-and-a-half years after the search ...

Ninth Circuit Reverses Summary Judgment on Unreasonable Seizure Claim

by Mark Wilson

The U.S. Court of Appeals for the Ninth Circuit reversed the dismissal of unreasonable seizure and First Amendment violation claims. The Court held that there were disputed issues of material fact on whether police had probable cause to cite plaintiff for obstructing a buffalo herding operation.

Several state and federal agencies conduct buffalo herding (“hazing”) operations in and near Yellowstone National Park. The Buffalo Field Campaign is a nonprofit organization that monitors and documents those hazing operations. It sends video footage and information about the operations to media outlets and government agencies.

On May 23, 2012, campaign volunteers Patrick Reed and Kasi Craddock-Crocker were in a vehicle attempting to observe the hazing of buffalo into Yellowstone National Park across Highway 191. Montana Department of Livestock Agent Rob Tierney approached Reed’s vehicle and directed him to move, claiming he was parked in the planned herding route.

Reed drove about 0.6 miles north and parked on a gravel road that ran parallel to the highway on a hill that was separated from the highway by a grass median about 0.3 miles north of the haze path. He parked there “because it was the farthest away place ...

Supreme Court Holds Texas May Not Use Outdated Standards to Determine Intellectual Disability in Death Penalty Cases

by Matt Clarke

In a 5-3 opinion handed down on March 28, 2017, the U.S. Supreme Court held that the Texas Court of Criminal Appeals (“CCA”) violated the Eighth Amendment and Supreme Court precedent when it relied upon its own previous opinion and superseded medical standards to conclude that a death row prisoner was not intellectually disabled and thus eligible to be executed.

Texas state prisoner Bobby James Moore was 20 years old when he killed a grocery store clerk during a botched robbery. He was convicted of capital murder and sentenced to death. Subsequently, a state habeas court determined that Moore was intellectually disabled and ineligible for the death penalty pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 134 S. Ct. 1986 (2014). In doing so, the habeas court relied upon current medical diagnostic standards, viz., the 11th edition of the American Association on Intellectual and Developmental Disabilities clinical manual (“AAIDD-11”) and the 5th edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. The court recommended to the CCA that Moore’s request for relief be granted.

The CCA declined to follow the habeas court’s recommendations. It held that ...

New York City Quietly Assembling Massive Unregulated DNA Database

by Derek Gilna

Add overly aggressive collection of DNA samples from often unwitting individuals to the list of questionable police tactics in New York City with which criminal defense attorneys and the general public must now deal. Operating under the radar until recently, the city has been quietly building “a vast, unregulated DNA database,” with some of its collection techniques now coming into question.

Although state and federal governments must follow defined protocols in the collection of DNA evidence that largely restrict collection to those individuals convicted or arrested for a serious crime, there are no comparable limitations in place regulating collection efforts by NYC. This lack of regulation and oversight is of grave concern to famed civil rights attorney and renowned DNA expert Barry Scheck, co-founder of the Innocence Project, who opined, “It always is extremely troubling when bureaucracies spiral out of control and start invading areas that the state legislature did not authorize, and which are impinging upon privacy concerns.” 

While courts have consistently upheld the legality of collecting DNA samples from individuals convicted of a crime as well as most categories of arrestees, New York University School of Law professor Erin Murphy expressed concern about ...

U.S. Supreme Court Rejects Habeas Relief Citing AEDPA Deference

by Brandon Sample, Esq.

If you are a state prisoner hoping to find a sympathetic ear for a federal habeas petition, two recent decisions from the U.S. Supreme Court illustrate the challenges one must overcome.

Kernan v. Cuero

Michael Cuero sought federal habeas release, arguing that the state breached his plea agreement. His original plea agreement called for a maximum sentence of “14 years and 4 months.” However, after Cuero pleaded guilty, the state realized that he was a habitual offender. The state then sought, and received, permission to amend its complaint. The amended complaint increased Cuero’s sentence from a maximum of 14 years and 4 months to a minimum of 25 years.

Cuero opposed the amendment, arguing that he should be sentenced to no more than 14 years and 4 months per the original plea agreement. But to remedy the apparent breach of the plea agreement, the state court merely permitted Cuero to withdraw his first plea. He later pleaded guilty to the amended complaint and was sentenced to 25 years.

Cuero argued in state court that he was entitled to specific performance of the original plea agreement, rather than being forced to withdraw his plea. The ...

Texas Attorney General Rules Civilly Committed Sex Offenders Entitled to Vote by Mail Ballot

by Matt Clarke

In May 2017, Texas Attorney General Ken Paxton ruled that civilly committed sex offenders have a right to vote by mail ballot. The ruling puts an end to the confusion surrounding the issue, which resulted in all the mail ballots belonging to residents of the Texas Civil Commitment Center for Sexually Violent Predators being discarded for the 2016 presidential election.

Paxton’s ruling is based upon a determination that the residents of the center are disabled for mail ballot purposes. Under state election law, mail ballots may be used for individuals who are disabled, over 65 years of age, or confined to jail but otherwise eligible to vote. The ruling states, “Sexually violent predators have been adjudged by a court to possess a behavioral abnormality, defined as a ‘condition that, by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.’” Consequently, according to the ruling, civilly committed sex offenders are disabled and thus qualify for voting by mail ballot.  

Unfortunately, the victory comes too late for the center’s residents who tried to ...

Tennessee Supreme Court Clarifies Split Confinement Sentence Procedures

by David Reutter

In response to a federal district court’scertified questions of law, the Tennessee Supreme Court held that when imposing split confinement sentences under the Tennessee Sentencing Reform Act of 1989, a trial judge is authorized to fix a percentage that the defendant must serve in actual confinement before becoming eligible to earn work credits. It also held that sheriffs do not have a duty to challenge a prisoner’s sentence as improper or potentially improper.

Jason Ray pleaded guilty on June 3, 2013 to theft of property over $60,000, a class B felony, which has a sentencing range of 8-to-30 years. The trial court imposed a 10-year sentence in a form known as “split confinement” or “shock probation.” The sentence imposed by the court required 11 months and 29 days jail time, with the remainder to be served on supervised probation. The trial court required Ray to serve 75% of his jail time before being eligible for so-called trusty or work credits that could be applied to reduce the confinement portion of his sentence.

An error at the jail resulted in him earning trusty credits prior to serving at least 75% of his jail time as directed ...

Sentence Vacated Due to Improper Enhancement Under Sentencing Guidelines

by Christopher Zoukis

The United States Court of Appeals for the Second Circuit vacated an improperly enhanced sentence of 46 months for illegal reentry after deportation.

In 2009, Roman Bartolo Genao, a national of the Dominican Republic, was convicted in New York state court of first-degree burglary and first-degree robbery. Genao forced his way into the victim’s home, placed a knife against her throat, and demanded money. He later called the victim and threatened to kill her family and burn down her house if she called the police. He was sentenced to six years in prison, deported upon release, and told he could not return to the U.S.

In August 2015, Genao flew into New York City, where he was immediately arrested on charges of illegal reentry. He pleaded guilty to the offense and was sentenced to 46 months in federal prison.

On appeal to the Second Circuit, Genao argued that his sentence was procedurally unreasonable. Specifically, he argued that the PSR prepared in connection with his sentencing improperly calculated his sentencing guidelines range because it determined that his previous crime was a “crime of violence” that warranted a 16-level enhancement; whereas, the crime he was actually convicted of ...

Idaho Supreme Court: Officer Must Intend to Arrest Before Conducting a Search Incident to Arrest

by Christopher Zoukis

The Idaho Supreme Court handed down an opinion on September 22, 2017 that clarified an important exception to the requirement that police officers obtain a warrant prior to conducting a search. The exception known as “search incident to arrest” allows police to conduct a warrantless search of an arrestee while in the process of a lawful custodial arrest. The Court ruled that an officer must actually intend to make the arrest before conducting such a search.

Officer Laurenson of the Fruitland Police Department observed Trevor Lee driving. From past experience, he suspected that Lee was driving without a license and confirmed his suspicion after running his name. A short time later, Laurenson saw Lee walking along the road and stopped him for suspicion of driving without a license.

During the stop, Laurenson noticed a large bulge in Lee’s pocket, and without Lee’s permission, he searched Lee’s pocket. The pocket contained a small pocketknife and several cylindrical containers. Laurenson then placed Lee in his patrol car, told him that he was “going to get a citation for driving without privileges,” and proceeded to search the containers, which contained drugs. Lee was subsequently arrested on charges of possession ...

DOJ Ends Unconstitutional Investigative Holds by Louisiana Police

by David M. Reutter

The U.S. Department of Justice (“DOJ”) determined that two Louisiana police agencies utilized unconstitutional “investigative holds.” The practice was used by the Evangeline Parish Sheriff’s Office (“EPSO”) and the Ville Platte Police Department (“VPPD”) to arrest and hold people in jail without obtaining a warrant and without probable cause to believe the individuals had committed a crime—in violation of the Fourth Amendment.

Both agencies used investigative holds as a regular part of their criminal investigations and induced “people to provide information to offices under threat of continued wrongful incarceration,” the DOJ stated in its report, Investigation of the Ville Platte Police and the Evangeline Parish Sheriff’s Office. In the report, the DOJ expressed “concerns that these unconstitutional holds have led to coerced confessions and improper criminal convictions.”

Potential witnesses were also subjected to the unconstitutional practice, not just suspects. In 2014, the VPPD detained a woman and her family after a grocery shopping trip that included an armed robbery they may have witnessed. A VPPD officer stopped her and asked about the crime, but the woman said she had no information about it. When she got home, another VPPD police officer forced ...

In Case of First Impression, Louisiana Supreme Court Holds Public Records Restriction Inapplicable to Defense Attorney’s Request for Client’s Files and Awards Fees

by Mark Wilson

The Louisiana Supreme Court held that an attorney representing an incarcerated felon is not subject to La. R.S. § 44:31.1 when making a public records request to get information in connection with a potential post-conviction relief application.

La. R.S. §  44:31.1 provides that “an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies” is not a “person” within the meaning of the state’s public records laws “when the request for public records is not limited to grounds upon which the individual could file for post-conviction relief….” Under the statute, the custodian of records “may make an inquiry of any individual who applies for a public record to determine if such individual is in custody after sentence following a felony conviction who has exhausted his appellate remedies….” The custodian may also inquire whether the request is limited to grounds upon which the individual could file for post-conviction relief.

Louisiana prisoner Stephan Bergeron hired attorney James Boren to investigate whether he had a valid basis for seeking post-conviction relief on 2013 rape convictions. Boren made a public records request with the St. Landry District Attorney’s ...

New York Becomes First State to Require Trial Judges to Remind Prosecutors of Their Brady Obligations During All Criminal Trials

by Christopher Zoukis

New York Chief Administrative Judge Lawrence K. Marks issued a bold (and much needed) new rule on November 7, 2017. Intended to remind prosecutors of their duty to disclose exculpatory material to the defense, the rule requires that all trial judges in the state issue a “Brady” order at the outset of all criminal trials. New York becomes the first state in the country to implement a statewide notice requirement by presiding judges to prosecutors in all applicable criminal trials.

In 1963, the United States Supreme Court determined in Brady v. Maryland, 373 U.S. 83 (1963), that the Constitution requires the government to hand over all exculpatory information on a timely basis to defendants facing criminal prosecution. Despite this constitutional obligation, the failure of prosecutors to comply with their Brady obligations has been a persistent problem. Research shows that an alarming number of innocent people have been wrongfully convicted and imprisoned based upon the prosecution’s failure to provide exculpatory evidence in its possession to the defense.

Prosecutors who fail to turn over Brady material to the defense are rarely punished or sanctioned for their misconduct. Under the new rule, judges are permitted to impose sanctions or ...

Oregon Supreme Court Announces Default Rule When Plea Agreement Silent About Reprosecution Upon Subsequent Death of Victim

by Mark Wilson

The Oregon Supreme Court upheld the dismissal of murder charges against a defendant who pleaded guilty under a plea agreement to assaulting a victim who subsequently died.

In August 2013, Trevin Michael King, 17, and an adult co-defendant assaulted a man and stole his bicycle. The victim was found the next day, unconscious and suffering from multiple head wounds. King was charged with second-degree assault and first-degree robbery. The victim languished in a coma for several months.

By early 2014, the parties entered into negotiations in contemplation of a plea agreement. Although prosecutors were aware of the possibility that the victim could die at any moment, they never discussed what would happen if he did. 

In February 2014, King pleaded guilty to assault and no contest to robbery during a plea and sentencing hearing. The terms of the oral plea deal were stated on the record, which included a recommendation of a 120-month sentence. The court accepted the recommendation and sentenced him accordingly. Again, the issue of what would happen if the victim died was never brought up by the parties or the court.

The victim died about six months after King’s guilty plea. Despite the ...

Baltimore Police Department’s Misconduct Scandals Result in Hundreds of Dismissals and Indictment of Eight Officers

by Derek Gilna

A federal racketeering investigation into Baltimore Police Department misconduct has resulted in the dismissal of approximately 300 pending prosecutions and investigations into an additional 850, including some that were already closed. News reports revealed that body camera footage from three separate incidents during the summer of 2017 implicated several Baltimore cops in criminal behavior that resulted in eight of them being indicted.

 At a time when most people carry a cellphone capable of recording video and an increasing number of police departments requiring their members to wear body cameras while on patrol, establishing police misconduct is no longer solely dependent on the credibility of eyewitness testimony. Unfortunately, video evidence of wrongdoing is still not enough to hold those caught accountable or to clear the victims of the wrongdoing in a timely fashion. Even though video evidence in the three incidents involving the Baltimore PD appears to be damning, public defenders accuse the state’s attorney’s office of dragging its feet in dismissing cases tainted by the police misconduct and releasing all of the evidence in its possession.

Some of that video footage shows Baltimore police appearing to plant evidence and alter crime scenes. Public defenders say that there ...

Idaho Supreme Court Reinstates Class Action Against the State Alleging Inadequate Public Defense System

by Mark Wilson

On April 28, 2017, the Idaho Supreme Court reversed the dismissal of a class action lawsuit alleging that Idaho’s public defense system violates federal and state constitutional standards. The Court held that claims against the State and the Idaho Public Defense Commission (“PDC”) were improperly dismissed but upheld the dismissal against the Governor.

On June 17, 2015, four Idaho criminal defendants brought a class action lawsuit against the State of Idaho, Governor C.L. “Butch” Otter, and seven members of the PDC. The Idaho Supreme Court noted that the plaintiffs are not seeking any relief in their own cases; instead, “they seek to effect systemic reform.”

Plaintiffs alleged systemic inadequacies in the public defense system that resulted in actual or constructive denials of counsel at critical stages of the prosecution in violation of the U.S. Constitution and Idaho Constitution. They sought various forms of equitable relief, “including a declaration that Idaho’s public defense system is unconstitutional and an injunction requiring Respondents to bring Idaho’s public defense system into constitutional compliance.” The district court granted defendants’ motion to dismiss, holding that dismissal was required on standing, ripeness, and separation of powers grounds.

The Idaho Supreme ...

Suffolk County District Attorney and Aide Indicted for Beating and Coverup

by Derek Gilna

Suffolk County, New York residents concerned about crime in their community apparently did not need to look any further than the activities of their own district attorney, Thomas Spota, 76. He and his aide, Christopher McPartland, were federally indicted in October of 2017 for helping to cover up the 2012 beating of a suspect named Christopher Loeb while he was in the custody of former Suffolk Police Chief James Burke.

Spota appeared in court on October 25, 2017 to answer charges of criminal conspiracy and obstruction of a federal investigation into Loeb’s accusation that he was brutally beaten after he broke into Burke’s SUV and found sex toys and miscellaneous pornography in a gym bag kept in the vehicle.

Spota is no stranger to controversy and accusations of misconduct. In 2016, a fellow Suffolk County officeholder accused him of illegally wiretapping his political enemies.

Those accusations prompted fellow Democratic officeholder, Suffolk County Executive Steve Bellone, to call on Spota to resign in 2016. In light of the new accusations, Bellone renewed his call for Spota to resign, saying, “Tom Spota, you must resign from this office.... This culture of corruption which perverts this government, which destroys lives ...

New California Law Safeguards Minors’ Rights When in Police Custody

On October 11, 2017, California Governor Jerry Brown signed into law much-needed protection for minors who are targeted by police for questioning. Senate Bill 395 requires that minors 15 years of age or younger consult with a lawyer in person, by telephone, or by video conference before a custodial interrogation may occur and before the waiver of any Miranda rights.

Previously under California law, minors of any age could waive their Miranda rights. In a particularly egregious case that was cited by sponsors of the new law, a 10-year-old boy was deemed to have made a voluntary, knowing, and intelligent waiver of his Miranda rights when asked by police whether he understood his right to remain silent by responding, “Yes, that means that I have the right to stay calm.” Remarkably, an appellate court held that his statement constituted a valid waiver of his Miranda rights, and the California Supreme Court declined to review the lower court’s troubling decision. Under the new law, that farce would not constitute a valid waiver of a minor’s Miranda rights.

This reform was urgently needed. As the American Academy of Child and Adolescent Psychiatry explains, children and adolescents “differ from adults in the ...

What Do You Get for Kicking Handcuffed Suspects? Promoted and $130,000 Annual Pension for Life

by Derek Gilna

In most jobs, if you kick a defenseless person multiple times and attempt to cover it up, you will not only get fired, but will probably also get arrested and sent to jail.  Not so in Hartford, Conn., where cops, Steven Barone and Christopher Mastroianni, kicked and stomped handcuffed suspects Ricardo Perez and Emilio Diaz back in June 2016. After being disciplined internally for their abusive behavior, both Barone and Mastroianni were promoted to higher paying positions in the police department in September 2017.

Both suspects fled from police and engaged in a car chase before they were apprehended and handcuffed. Mugshots showing multiple injuries to their face and head prompted an excessive-force investigation by internal affairs.

Another cop involved in the incident, Sean Spell, who stomped one of the suspects in the head while he was on the ground, was not as lucky but still managed to cash in despite his brutal actions caught on dash cam video. He was arrested and forced to retire, but the 46-year-old managed to keep his taxpayer-funded pension of nearly $130,000 a year for the rest of his life.

The promotion of these two cops and allowing another ...

$450,000 Settlement to Whistleblower in Case of Framing

by David Reutter

The U.S. Court of Appeals for the Sixth Circuit ruled a one-legged woman exonerated of murder can sue a Kentucky State Police (“KSP”) detective whom the woman charged framed her. In connection with her case, a Louisville Metro Police Department (“LMPD”) detective who was integral in her exoneration received a $450,000 whistleblower settlement.

Kyle Breeden was found dead on November 5, 1998. His body was found in a river 10 days after he went missing. The cause of death was from two non-exiting .22 caliber gunshot wounds to the head, meaning they were available for comparison purposes. Breeden’s legs were bound with a guitar amplifier cord.

KSP detectives were unable to identify the perpetrator. Susan King became a suspect due to her “on / off again relationship” with Breeden, and between his disappearance and his body being found, King shared with others her premonitions of “Breeden being found in water.” Detectives’ attempts to obtain a search warrant based on that information, that she had bullet holes in her home’s floor, and that she played the guitar, were unsuccessful.

The case went cold for seven years, until it was assigned to KSP Detective Todd Harwood. He ...

Georgia Supreme Court Grants New Trial After Trial Transcript Lost

by Christopher Zoukis

The Georgia Supreme Court unanimously ruled on October 2, 2017 that a convicted murderer was entitled to a new trial because the original trial transcript was destroyed in a fire, and the State’s efforts to recreate it were wholly insufficient.

Craig Johnson was found guilty of malice murder and other crimes relating to the stabbing death of Nicole Judge. The evidence against Johnson was strong and included videotaped custodial statements by Johnson in which he alternately claimed that he was not there; he was there but Judge stabbed herself to death; and her (nonexistent) boyfriend was there and fought with Johnson.

After his conviction, Johnson timely appealed. When his appellate counsel requested the trial transcript, he learned that the verbatim transcript had been destroyed in a fire at the court reporter’s house. Lacking a complete transcript upon which to base a meaningful appeal, Johnson moved for a new trial.

Instead of granting Johnson a new trial, the trial court ordered the State to “recreate” the transcript, as permitted under Georgia law. After a hearing, the trial court concluded that the recreated transcript was correct and sufficient for purposes of Johnson’s appeal. He objected and appealed to the ...

Trump Administration Kills Obama’s Forensic Evidence Reliability Reform Efforts

by Mark Wilson

Less than three months into the Trump administration, the President’s assault on science, truth, and all things Obama reached the criminal justice system. Under Trump’s watch, a commission working to improve the reliability of forensic evidence has been abolished.

In 2013, the Obama Administration created the National Commission on Forensic Science, an independent advisory panel of approximately 30 scientists, crime lab leaders, judges, prosecutors, and criminal defense lawyers. The commission was charged with reviewing forensic science standards and making recommendations to ensure the reliability of forensic science used in criminal trials.

The commission was created in the wake of numerous scandals and reports about unreliable evidence being used to convict and even execute criminal defendants.

In 2005, for example, the FBI abandoned its 40-year practice of tracing bullets to a specific manufacturer’s batch through chemical analyses, after its methods were scientifically debunked. Also in 2015, the Justice Department and FBI admitted that nearly every examiner in a hair-analysis unit gave scientifically flawed or overstated testimony in 90 percent of cases from 1980 to 2000. Those cases included 32 criminal defendants who were sentenced to death, and 14 of the condemned men were executed or died in prison ...

Mississippi Supreme Court Upholds Lawyer’s Contempt Sanction for “Improper” Argument

by Mark Wilson

The Mississippi Supreme Court upheld contempt sanctions against a criminal defense attorney, finding that he prejudiced the jury against the judge and prosecutor when he insinuated that they were preventing him from telling the truth.

Adofo Minka represented William Wilson on firearms charges. The trial court interrupted his opening statement when Minka made what the court found to be an objectionable emotional appeal. Afterwards, Minka continued his statement, saying “According to what the prosecution is saying the evidence will show, my client...over there, should already be on the bus to Parchman Penitentiary. Simple enough: right? Wrong.” The court interrupted again and admonished Minka that his soliloquy was an improper comment on the sentence Wilson might receive when the jury would play no role in sentencing.

Once Minka resumed his opening statement, he argued that the case was “about unrestrained and unchecked power.... It is about how power only cares about taking care of itself. It’s about power betraying our trust. During the course of this trial you’re going to hear from men who represent the powerful entities....”

The prosecutor objected and asked for a bench conference. The court declared that Minka’s comments were disrespectful ...

Ninth Circuit Suppresses Gang Affiliation Evidence Obtained Without Miranda Warnings

by Mark Wilson

The United States Court of Appeals for the Ninth Circuit affirmed the suppression of evidence of gang affiliation obtained without Miranda warnings.

On July 4, 2012, Antonio Gilton was arrested for murder and invoked his right to counsel. He was taken to jail and locked in a holding cell. At about 2:30 a.m. on July 5, a guard removed Gilton from the holding cell and asked if he was affiliated with the Fillmore/Central Divisadero Playas (“CDP”) gang. He did not read Gilton his Miranda rights or tell him that he was free to return to his cell without answering.

“Yeah, I hang out there, put me where I’m from,” said Gilton. The guard entered his answer on two forms used to designate gang affiliation and determine where to house suspects. The guard classified Gilton on the basis of his response, his arrest record, and police intelligence.

Gilton was initially charged with murder and other state offenses. Those charges were subsequently dismissed, but a federal grand jury indicted Gilton on charges of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), murder in aid of ...

Seventh Circuit: No Federal Court Jurisdiction to Resolve State Executive and Legislative Branch Disputes

by Mark Wilson

The U.S. Court of Appeals for the Seventh Circuit held that federal courts lack jurisdiction to hear declaratory judgment actions filed by a city’s executive branch against its legislative branch. “State courts may have authority to resolve an intramural dispute,” the Court observed. “Otherwise it must be worked out the same way Congress and the President resolve their differences: by politics.”

The South Bend Police Department in Indiana routinely records conversations on some officer desk phones supplied by the department. While working in the risk management bureau in 2005, Captain Rick Bishop requested recordings of his phone line.

Steve Richmond took Bishop’s former position and office in February 2010. Richmond wanted to keep his old number, so Bishop’s line was switched to the vacant office assigned to the investigative division captain.

Brian Young was promoted to captain of the investigative division in March 2010. He did not know the phones in his new office were being recorded.

The Department’s recording system crashed in 2011 and had to be restored from a backup. The Department’s director of communications, Karen DaPaepe, listened to some of the recordings to ensure that the restoration was done correctly.

While ...

Prosecutors in New Orleans Prosecute Public Defenders for Doing Their Job

by Matt Clarke

Where can you face criminal prosecution for doing your job? The answer is New Orleans if you work for the Orleans Public Defenders (“OPD”).

Prosecutors in New Orleans have been threatening to criminally charge the public defenders and investigators who conscientiously do their jobs, in a tactic to suppress their zeal. Some have actually been charged.

In one case, prosecutors indicted OPD investigator Taryn Blume for impersonating a peace officer after she sought to obtain records from a public housing security office. Another OPD investigator, Emily Beasly, was arrested and led out of the courtroom in handcuffs after prosecutors charged her with two counts of kidnapping for talking with two young girls, who allegedly had been sexually assaulted, outside their house while their mother slept inside.

Prior to the devastation of Hurricane Katrina in 2005, New Orleans had no full-time public defenders. Instead, judges appointed attorneys to handle individual cases involving indigent defendants. In the pre-Katrina era, New Orleans was jailing more people per capita than any other major city. After Katrina, the OPD was reformed into an independent, full-time office recruiting mission-driven, top-tier lawyers from across the nation.

The reform shocked a criminal justice system that ...

Criminal Cops: Tracking Crimes Committed by Police Officers

by Christopher Zoukis

Police officers are sworn to uphold the law. When the uniform goes on, they become arbiters and enforcers of right and wrong. But a new police crime database reveals an important and often overlooked aspect of the job: Police officers are people first, cops second. And people sometimes commit crimes.

The database, compiled by Philip Stinson, tracks how often police officers are arrested. Stinson, a former cop and now an associate professor of criminal justice at Bowling Green State University in Ohio, gathered data on arrests of police officers from 2005 to 2012. Stinson’s data are limited to 2,830 state, local, and special law enforcement agencies out of about 18,000 across the country, but nevertheless provide valuable insights. Police crime is not as rare as the average person might think.

According to Vice News, Stinson’s data show 8,006 arrest incidents resulting in 13,623 charges involving 6,596 police officers from 2005 through 2012. Nearly half of the incidents were violent. Because Stinson’s data cover fewer than 20 percent of all law enforcement agencies and just a fraction of the 1.1 million sworn officers in the U.S., the actual number of arrests ...

Eighth Circuit Reverses Summary Judgment on Ferguson Protestor’s Excessive Force Claim

by Mark Wilson

The U.S. Court of Appeals for the Eighth Circuit reversed summary judgment in favor of four police officers on an excessive force claim while arresting protestors of the Michael Brown police shooting death.

White Ferguson Police Officer Darren Wilson shot African-American teenager Michael Brown Jr. to death on August 9, 2014. The shooting sparked mass protests in Ferguson and across America. During the Ferguson protests on August 11, 12, and 13, police deployed tear gas, non-lethal bullets, and other forms of force while arresting many protestors. On August 13, DeWayne Matthews was not a protestor but was walking near a crowd that was throwing bottles, rocks, and a Molotov cocktail at police. Believing that Matthews was a protestor, Detective Joe Patterson gave him a loud verbal command to turn around and walk the other direction. When he did not comply, Patterson yelled that Matthews was under arrest. Matthews continued to walk towards police, so they opened fire, hitting him with about five bean bag rounds and four rubber bullets.

When he was hit in the shin with a bean bag, Matthews fell into a culvert containing two-to-three feet of water. Detectives Aaron Vinson and William Bates ...

News in Brief

Arkansas: On October 16, 2017, former Gateway Police Chief and Benton County Constable Grant Hardin, 48, was sentenced to 30 years in prison after admitting to fatally shooting James Appleton in February. He pleaded guilty to first-degree murder in a plea agreement in which the prosecution reduced the charge from capital murder. Hardin shot Appleton in the head while he sat in a parked pickup truck talking on the phone with his brother-in-law and Gateway Mayor Andrew Tillman. Hardin will have to serve at least 21 years of his sentence before he will be eligible for parole.

California: In a macabre case of “do as I say, not what I do,” LAPD Officer Edgar Omar Verduzco, 26, posted a 10-second video clip on Instagram reminding people not to drink and drive just three hours before drunkenly smashing into two cars. A couple and their teenage son were trapped inside their burning Nissan and were pronounced dead at the scene on September 27, 2017. According to investigators, Verduzco was speeding in the carpool lane on the 605 Freeway when he rear-ended the Nissan, which immediately burst into flames. He reportedly sent the seemingly sardonic Instagram warning while drinking at a ...




 

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