by Derek Gilna
"Security checkpoints with identification scanners guard the train station and roads in and out of town. Facial scanners track comings and goings at hotels, shopping malls and banks. Police use hand-held devices to search smartphones for encrypted chat apps, politically charged videos and other suspect content. To fill up with gas, drivers must first swipe their ID cards and stare into a camera,” according to a recent report by The Wall Street Journal.
Fiction? No, it’s all too real, but fortunately, not in the United States, at least not yet. What was described was the stark reality faced by residents of Urumqi, China, where “citizens and visitors alike must run a daily gauntlet of police checkpoints, surveillance cameras and machines scanning their ID cards, faces, eyeballs and sometimes entire bodies,” The Wall Street Journal reports.
Many criminal justice experts think that America is steadily reaching the point when civil liberties and personal freedoms guaranteed by the U.S. Constitution and the Bill of Rights have given way to the beginnings of a police state. Although one may argue that a comparison with the police states of totalitarian regimes like China is extreme, there are many ...
The United States Court of Appeals for the Eighth Circuit ruled on September 28, 2017 that a generic burglary conviction in Illinois cannot be used as one of the three “violent felonies” necessary to establish violation of the Armed Career Criminal Act (“ACCA”).
The ACCA is a federal statute that provides enhanced penalties, including a mandatory minimum 15-year sentence, for defendants with three prior convictions for certain “violent felonies.” When Eddie Byas was convicted of being a felon in possession of a firearm, the district court applied the ACCA and imposed a 15-year, mandatory minimum. Byas objected, arguing that one of the three predicate convictions used by the court, a burglary conviction from the state of Illinois, did not qualify as violent for purposes of the ACCA.
On appeal, the Eight Circuit began its analysis by noting, “A state conviction for burglary may only serve as an ACCA predicate offense if the scope of conduct it criminalizes is no broader than the generic definition of burglary set forth” by the U.S. Supreme Court, i.e., “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Looking closely at the ...
by Richard Resch
Welcome to Criminal Legal News (“CLN”). This issue of CLN has been circulated to a wide and diverse audience beyond the usual suspects, so many individuals who have received a copy may not be familiar with CLN, Prison Legal News, or the Human Rights Defense Center. Accordingly, I’d like to provide a brief overview of our publications and organization.
CLN is a monthly print and online publication focusing on individuals’ legal rights as they pertain to interactions with the criminal justice system. Specifically, CLN’s coverage includes, but is not limited to, state and federal criminal law and procedure, constitutional rights, police and prosecutorial misconduct, official abuse of power, habeas corpus relief, ineffective assistance of counsel, sentencing errors and reform, militarization of police, surveillance state, junk science, wrongful convictions, false confessions, witness misidentification, Brady violations, paid/incentivized informants, plea agreements, asset forfeiture, capital punishment, search and seizure, Miranda warnings, sex offender registries, post-release supervision and control, and due process rights.
Each issue of CLN features a cover story, expert legal commentary and analysis by a columnist, legal news articles, summaries of useful appellate court decisions, and News in Brief (short topical stories from around ...
by Derek Gilna
Residents in Suffolk County, N.Y. concerned about crime in their community did not need to look any further than the activities of their own district attorney, Thomas Spota, 76, who was federally indicted in October of 2017 for helping to cover up the 2012 beating of a suspect named Christopher Loeb, who was in the custody of former Suffolk Police Chief James Burke. Spota’s close aide and head of the political corruption unit, Christopher McPartland, was also charged.
Spota appeared in court on October 25, 2017 to answer charges of criminal conspiracy and of obstruction of a federal investigation into Loeb’s accusations 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, he was accused by a fellow Suffolk County officeholder of illegally wiretapping his political enemies.
Such accusations prompted fellow Democratic officeholder, Suffolk County Executive Steve Bellone, to call on Spota to resign in 2016, saying, “Tom Spota, you must resign from this office so that we can begin the process of reforming this place—governmentally and politically—in ...
by Derek Gilna
Each year dozens of suspects armed with knives are needlessly shot and killed by police who feel that they are justified in using deadly force based upon the “21-Foot Rule” contained in many department training manuals. According to former San Jose police officer and criminologist, Dr. Ron Martinelli, the rule has no basis in fact and should no longer be followed.
The “21-Foot Rule” apparently arose out of police training manuals formulated in Salt Lake City, and was based upon the premise that a suspect armed with an edged weapon could cover 21 feet faster than a police officer could draw and fire his holstered weapon. Based upon that theory, police officers have used it as justification to shoot suspects in the past several decades.
According to Dr. Martinelli, “I study officer involved cases every single day. I actually get notations all around the United States whenever an officer goes down or a suspect goes down.” Martinelli said that he carried out numerous drills with police officers of varied experience and skill sets and measured them against the reaction time of U.S. Navy Seals.
As a result of data collected from those drills, Martinelli said ...
by Derek Gilna
On October 27, 2017, a federal jury awarded a record $44.7 million to a man, Michael LaPorta, who was shot by a drunken off-duty Chicago police officer named Michael Kelly. Kelly and LaPorta, who were friends at the time, were in Kelly’s home, and after a ...
by Antonio Romanucci
Last week, my firm, Romanucci & Blandin, secured the largest verdict ever in a police misconduct lawsuit in Illinois against the city of Chicago — $44.7 million.
In an op-ed reacting to the verdict, William Choslovsky pointed to this outcome as a product of “the Chicago ...
by Attys. Kent Russell & 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 “AEDPA,” the federal habeas corpus law that now governs habeas corpus practice in courts throughout the United States.
Most IAC claims are made against trial counsel, which is the focus of this column.
Simply stated, IAC has two elements: (1) deficient performance and (2) prejudice. A lawyer performs “deficiently” when he or she doesn’t do the things to defend the client that any reasonable lawyer would do. “Prejudice” requires the petitioner to demonstrate a reasonable probability that, but for the trial lawyer’s errors, the result of the trial would have been more favorable to the defendant.
As easy as it is to allege an IAC claim using the above principles as a guide, actually winning an IAC claim is a formidable challenge, for the following reasons:
• Deficient performance must be analyzed from the perspective of the trial lawyer at the time—i.e., when it’s impossible to know whether a particular defense will work or not—rather than with 20-20 hindsight. Therefore any ...
by Christopher Zoukis
It’s 3 a.m. Do you know what your cell phone is doing?
With the advent of stingray technology, it just might be reporting your location to government officials. Or it might be transmitting data to the authorities. Your phone may even be acting as a microphone, allowing local police to listen in on you in the privacy of your own home.
A cell-site simulator, commonly known as a stingray, is an electronic device that is used by police primarily to locate cell phones. The device works by mimicking cell towers, tricking cell phones in the area into “pinging” the device rather than a cell tower. According to a motion filed in federal court by defense attorney Martha Boersch, a stingray can also “intercept content transmitted from phones within its range” and “force a phone to act as a microphone, essentially converting the phone to a wiretap.”
Boersch represents Purvis Lamar Ellis, an Oakland man charged with attempted murder of a police officer in 2013. On the night in question, Oakland Police Department officials and the FBI used stingray technology to locate him. Three years later, Ellis has not gone to trial, and Boersch has found ...
The City of Los Angeles was hit with a $5.5 million jury verdict in November 2017 for the death of a former Marine who was tased six times by officers with the Los Angeles Police Department (“LAPD”) while they were attempting to restrain him.
Michael Frederick Mears, who ...
The Oregon Court of Appeals determined that investigating officers failed to clarify the intent of a defendant’s equivocal invocation of the right to counsel, rendering his subsequent statements to police inadmissible.
Paul Joseph Sanelle was arrested on May 11, 2012 for a domestic violence-related murder. Detectives Anderson and Rau interviewed Sanelle on Saturday, May 12, 2012. Rau read Sanelle his Miranda rights and asked if he understood each of those rights. “Where’s the lawyer?” Sanelle asked. Rau asked “Have you got a lawyer? Have you hired a lawyer?” Sanelle answered “no,” saying he could not afford one.
“You’ll be appointed an attorney if you can’t afford one,” Rau told Sanelle. After telling him the appointment would occur at his arraignment on Monday, Anderson asked, “do you understand your rights?” and inquired whether he was willing to speak with detectives. “Yes, absolutely,” Sanelle responded. He then made several incriminating statements.
The trial court denied Sanelle’s motion to suppress, finding that “where’s the attorney?” was “not an invocation of the right to counsel or the right to remain silent,” because “defendant engaged in a lengthy interview without otherwise invoking his right to remain silent ...
by Mark Wilson
The United States Court of Appeals for the Second Circuit reversed a lower court’s denial of qualified immunity to police for arresting a man for stopping on the sidewalk to speak with Occupy Wall Street protestors.
On September 17, 2013, protestors gathered in New York City’s Zuccotti Park to commemorate the second anniversary of the Occupy Wall Street movement. Police monitored the gathering and placed a barricade around the park perimeter to separate protestors from pedestrians walking on the sidewalk adjacent to the park.
Seventy-three-year-old attorney Stephen Kass was walking on the sidewalk when he noticed the protestors. He approached the barricade and engaged in a non-confrontational conversation with protestors. Kass did not impede pedestrian or vehicular traffic. Nevertheless, New York Police Department (“NYPD”) officer Karen Ernst ordered Kass to “keep walking.” Kass told Ernst he wanted to hear the protestors’ views, was not blocking traffic, and had a right to remain on the sidewalk.
Ernst again ordered Kass to move away from the barricade. When he refused, Ernst summoned Sergeant Michael Alfieri. Protestors began videotaping Kass’ interaction with police. Ernst and Alfieri ordered Kass several times to keep walking. Kass again refused, objecting that he ...
by Christopher Zoukis
In the American criminal justice system, a defendant who commits a crime while “insane” cannot be held legally responsible for that crime. In such cases, legal guilt is not established, and the defendant may not be punished. Instead, a defendant who is found not guilty by reason of insanity (“NGRI”) is involuntarily committed to a psychiatric facility. In theory, once the defendant is treated and judged no longer dangerous, he or she is released.
However, this is not what happens in practice. Studies by the American Psychiatric Association show that defendants found NGRI are likely to spend just as much time confined in a psychiatric hospital as they would have spent in prison following a conviction. And according to The New York Times, a 1983 national study found that NGRI defendants “often lost their freedom for twice as long as those actually convicted of the same offense.”
A 30-year-old study is as close as we can get because the data on those found NGRI are sparse, to say the least. There is no federal oversight or tracking of how long these individuals stay incarcerated or why. But according to a 2017 National Association of State Mental ...
The New York Court of Appeals ruled on October 24, 2017 that the judge who presided over a defendant’s criminal trial cannot also act as the sole judge who presides over that defendant’s appeal as of right.
Brian Novak was convicted of driving while ability impaired by a judge in city court. He appealed the decision to county court, and during the pendency of his appeal, the original trial judge was elected to serve on the county court. After taking office, the same judge who found Novak guilty adjudicated his appeal. There were no surprises: the judge upheld his own ruling.
Novak appealed to the New York Court of Appeals, arguing that the judge should have recused himself from deciding the appeal. The government argued that because there was no statute that explicitly required the judge to recuse himself in this situation, he was free to exercise his discretion to decide the appeal.
The New York Court of Appeals disagreed and reversed with instructions that a different county court judge hear Novak’s appeal.
The Court of Appeals noted that under state law a defendant has a fundamental right to an appeal and that intermediate appellate court “are empowered to review ...
by Mark Wilson
The Oregon Supreme Court ruled that warrantless entry into a home to obtain nonconsensual blood-alcohol concentration (“BAC”) evidence did not amount to an exigent circumstance that could justify the warrantless home entry.
At 10:15 p.m., on October 11, 2011, police were dispatched to a single-vehicle crash near a trailer where Randall Ritz resided with his girlfriend, Wilson-McCullough. Officers arrived just after 10:30 p.m. and found a disabled truck in a ditch next to Ritz’s driveway. His girlfriend told officers that he had been drinking earlier and had been driving the truck. A neighbor told police that Ritz had been driving the truck erratically and appeared intoxicated a short time earlier.
Police were unable to locate Ritz. However, when an officer returned about an hour later, he spotted him on the trailer’s porch. Ritz went inside when he saw the officer. The officer called for backup. Ritz refused to exit his home, so an officer crawled through an open window and unlocked the front door. Several officers entered, and Ritz was arrested.
Ritz was charged with the misdemeanor offense of driving under the influence of intoxicants. He moved to suppress all evidence obtained after ...
by Mark Wilson
The Ohio Supreme Court held that once a warrant has been issued, the exclusion of evidence is not an appropriate remedy when police violate the knock-and-announce rule.
In October 2012, Boardman Police officers supervised two “controlled buys” by an informant, who purchased heroin from Harsimran Singh. Based upon those buys and Singh’s prior drug arrest, police secured a search warrant for the apartment that Singh shared with his girlfriend, Sherri Bembry.
Police executed the warrant on November 2, 2012. After officers knocked several times, someone inside the apartment asked, “Who is it?” An officer replied, “Police. Open the door.”
When the occupant still did not open the door, police forced the door open with a battering ram. Singh was taken from the apartment and thrown to the ground. Police found marijuana, heroin, drug paraphernalia, a stolen .38-caliber pistol, an AK-47 assault rifle, and two loaded magazines.
Singh and Bembry were both charged with drug offenses. They jointly moved to suppress all evidence obtained during the search, arguing that the search violated the Fourth Amendment, as well as Article I, Section 14, of the Ohio Constitution because police violated the knock-and-announce rule codified as Ohio Revised ...
by Dale Chappell
Unless the State can prove a defendant had “complete dominion” over the property he intended to steal from a person, he cannot be guilty of armed robbery, the Georgia Supreme Court held on October 20, 2017.
Just before Christmas 2008, Brodrick Williams and some friends approached a man on the street and told him to hand over the gold chain around his neck. The man refused and a struggle ensued, resulting in the shooting death of the victim. The chain was left behind when Williams fled.
A jury later found Williams guilty of armed robbery, murder, and possession of a firearm. Williams appealed and argued, among other things, that the evidence was insufficient to support the armed robbery conviction.
The Georgia Supreme Court agreed and overturned that conviction. Under Georgia law, an individual commits armed robbery when he or she takes property from the person or the immediate presence of another by use of an offensive weapon, the Court explained. In order to prove the “taking” element, the prosecution must prove both the “slightest change of location” of the property and “complete dominion” over the property were transferred, even temporarily, from the victim to the defendant.
The Oregon Court of Appeals reversed a lower court’s order, striking a defendant’s motion to suppress for failure to comply with a court rule.
Uniform Trial Court Rule (“UTCR”) 4.060(1) mandates that a motion to suppress evidence must: (1) cite any constitutional provision, statute, rule, case, or other authority upon which it is based, and (2) include the moving party’s brief, which sufficiently apprises the court and adverse party of the argument relied upon.
Nathan Oxford was charged with several firearm and drug offenses. Pursuant to Article I, section 9, of the Oregon Constitution, he filed a pretrial motion to suppress evidence seized during a warrantless search. Citing State v. Miller,524 P.2d 1399 (Or. 1974), Oxford argued that he had been subject to a warrantless search and seizure, which was “per se unreasonable,” and the “state has the burden to prove otherwise.” Oxford filed a supporting brief, citing Article I, section 9, and Miller as supporting authority.
At a hearing on the motion, the trial court noted that the prosecution had not moved to strike and apparently had no intention of doing so. The court then issued a sua sponteorder striking Oxford’s motion to ...
by Mark Wilson
The en banc Supreme Court of Washington held that a civilly committed sexually violent predator (“SVP”) was entitled to an evidentiary hearing. The State failed to carry its burden of making a prima facie showing that he continues to meet the SVP definition and that conditional release to a less restrictive alternative would be inappropriate.
John M. Marcum was convicted of Washington sex crimes against children in 1989. While on community placement for those offenses, he molested another child. He was convicted of that offense in 1994 and sentenced to 89 months in prison.
Just before his January 2000 release, the State petitioned to have Marcum civilly committed as an SVP. Marcum stipulated to the commitment in January 2001 and was transferred to the Special Commitment Center (“SCC”), where he participated in sex offender treatment.
In January 2009, Marcum was transferred to a less restrictive alternative (“LRA”) transitional facility where he remained for about two years. While there, Marcum struggled with depression, and his behavior deteriorated. He refused to work, objecting that wages were too low and that he could do only sedentary jobs. He lay in bed until late in the day, refused to exercise, and ...
by Christopher Zoukis
Cook County, Illinois Chief Criminal Judge LeRoy Martin tossed the convictions of 15 criminal defendants on November 16, 2017 because the cases were linked to disgraced former Chicago Police Sergeant Ronald Watts.
All of the men whose cases were overturned claimed that they had been framed by Watts, who went to federal prison in 2013 for stealing money from an FBI informant. Joshua Tepfer, who represented the 15 defendants, told the Chicago Tribune that he expects to see more charges dropped and convictions overturned because Watts and his crew of cops made over 1,000 arrests, leading to more than 400 possibly tainted convictions. Tepfer and his team at the University of Chicago Law School’s Exoneration Project are reviewing the cases.
“It needs to be investigated and vetted about how many of those are appropriate to overturn,” Tepfer said. “We are very much in the process of doing that.” Tepfer noted that the November 16, 2017 move by State’s Attorney Kim Foxx to drop 15 cases at once marked the first mass exoneration in Cook County history. He said that such a rare event is a sign of real problems in the Chicago law enforcement ...
by David Reutter
The U.S. Court of Appeals for the Eleventh Circuit ordered an evidentiary hearing in an ineffective assistance of counsel claim based on counsel’s failure to argue that some waste materials in the drug manufacturing process should not have been included as a “mixture or substance” in the drug quantity determination.
Before the Court was James Griffith’s appeal of an Alabama federal district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Griffith was arrested in February 2008 after the Tallapoosa County Narcotics Task Force raided his residence. A search of the residence uncovered a contact lens case containing 0.31 grams of methamphetamine and several jars and bottles containing “bi-layer liquids.”
A federal jury found Griffith guilty on six counts that included drug trafficking, possession of a weapon by a convicted felon, maintaining a place to manufacture methamphetamine, and possession of methamphetamine. At trial, Melissa Armstrong, a forensic drug chemist with the Alabama Department of Forensic Sciences, testified about the substances in the jars and bottles. Specifically, she testified about the methods she used in analyzing the substances and the results of her testing. Based on her undisputed testimony ...
by Mark Wilson
The United States Court of Appeals for the Eighth Circuit upheld a lower court’s refusal to suppress evidence obtained during a warrantless cellphone search. The Court of Appeals found that an Iowa prisoner did not have an expectation of privacy in his cellphone while serving a supervised release term and residing in a residential re-entry program.
Richard Jackson pleaded guilty to failing to register as a sex offender in violation of 18 USC § 2250(a). He was sentenced to 21 months in prison and a five-year supervised release term. Jackson’s supervised release conditions required him to submit to warrantless searches upon reasonable suspicion of contraband or release condition violations. The court also ordered Jackson to “reside, participate, and follow the rules of the residential reentry program ... for up to 120 days.”
On February 27, 2015, Jackson began serving his supervised release in a residential reentry program at the Fort Des Moines Community Correctional Facility.
The program rules prohibited cellphone possession in the facility. Residents were permitted to store their cellphones in lockers at the entrance, but no phones were permitted beyond that point. Numerous signs inside and outside the facility declared that any item brought ...
by Christopher Zoukis
The U.S. Court of Appeals for the First Circuit handed the federal government a significant defeat in a September 8, 2017 opinion, in which it threw out all but one conviction of two union members.
Joseph Burhoe and John Perry were members of Teamsters Local 82, a division of the International Brotherhood of Teamsters, located in south Boston. Local 82 provided union labor at trade shows throughout Boston. In a 30-count indictment, the Government charged the two men with extorting non-union companies as well as fellow union members between 2007 and 2011.
The Government’s theory was that certain actions undertaken by the defendants constituted violations of the Hobbs Act, as well as federal racketeering laws. The Hobbs Act attaches criminal liability to anyone who “obstructs, delays, or affects commerce . . . by . . . extortion . . . or commits or threatens physical violence to any person or property….” The Government contended that what the defendants considered normal union activity, such as threats to strike, requiring the use of union labor, and obtaining union wages for Local 82 members constituted criminal activity under the Hobbs Act. After a six-week trial, the defendants were convicted of multiple Hobbs Act violations, as well as ...
by David Reutter
The prodding by human and civil rights organizations has finally compelled 50 Alabama cities to reform their money bail practices. The push is putting an end to poor suspects languishing in jail solely because they cannot afford bail. Collectively, the 50 cities account for 40 percent of Alabama’s population.
The Southern Poverty Law Center (“SPLC”), in cooperation with attorneys from the Civil Rights Corps, wrote letters to Alabama municipalities to end their practice of incarcerating people charged with minor crimes for days or weeks until their cases are resolved. The reforms wrought by the letters have resulted in a change to bail practices that take into consideration a person’s ability to post bond.
Sam Brooke, SPLC deputy legal director, summed up the injustice of warehousing poor people accused of a crime: “Keeping people in jail cells for weeks or months simply because they can’t afford to pay for their freedom coerces people to plead guilty even if they are innocent, wastes taxpayer money on unnecessary detention, and is a form of wealth-based discrimination prohibited by the Constitution.”
In June 2016, Hoover enacted bail reform that has resulted in its jail population for municipal defendants dropping by ...
by Christopher Zoukis
The Supreme Judicial Court of Massachusetts ruled that a defendant accused of operating a motor vehicle while under the influence (“OUI”) has the right to prevent a jury instruction that could cause the jury to speculate about facts not in evidence.
Michael Wolfe was arrested and charged with OUI after a Marlborough police officer observed his vehicle crossing the double yellow line in a “jerking motion.” The arresting officer reported smelling alcohol on his breath and noted that Wolfe was incapable of operating his cellphone when he was permitted to make a call. Marlborough police did not obtain a breathalyzer or any other alcohol-test evidence.
Over Wolfe’s objection, the trial judge instructed the jury not to consider the absence of breathalyzer tests, field sobriety tests, or blood tests. Specifically, the trial judge said: “Now, you may have noticed that there was no evidence of any breath test, blood test, or field sobriety test introduced in this case. You are not to mention or consider in any way whatsoever during your deliberating either for or against either side that there was no such evidence introduced in this case. Do not consider it in any way at all ...
by Christopher Zoukis
A new study from the Harvard T.H. Chan School of Public Health has found that over half of all police killings in 2015 were not properly documented as such in official government records.
The study was published online October 10, 2017 in PLOS Medicine. It hypothesized that the National Vital Statistics System (“NVSS”), administered by the federal Centers for Disease Control (and reliant on state death certificate data), would underreport deaths at the hands of police when compared with another, non-governmental database that tracks law enforcement-related deaths. The non-governmental database used by the researchers for this comparison was a news media-based dataset provided by The Guardian called The Counted.
The results of the study proved the hypothesis correct. According to authors Justin M. Feldman, Sofia Gruskin, Brent A. Coull, and Nancy Krieger, there were an estimated 1,166 police killings in 2015. The NVSS correctly reported a mere 45 percent of these deaths. In contrast, The Counted reported 93 percent of them.
The lack of a government database that properly tracks police-related deaths is an indication of just how poorly understood this public health problem actually is. According to the lead author Justin Feldman, the nature ...
by Mark Wilson
The Vermont Supreme Court reversed a defendant’s conviction because she never personally admitted to a factual basis for her plea in violation of Vermont Rule of Criminal Procedure 11(f).
In 2013, Alexis Gabree was charged with two counts of grossly negligent operation of a vehicle, death resulting, in violation of V.S.A. § 1091(b). She ultimately entered into a plea agreement, which required her to plead guilty to both counts in exchange for a prison term of six to 15 years.
During a February 27, 2014 change-of-plea hearing, the court asked Gabree if she understood the charges against her and the maximum sentence she faced. She responded that she did. The court then asked the prosecutor and defense counsel whether there is a factual basis for the charges. Both attorneys agreed that a factual basis exists for the plea. Gabree then pleaded guilty to both counts, and the court accepted her plea.
On April 2, 2014, the court sentenced Gabree to a prison term of six to 15 years in accordance with the terms of the plea agreement. She subsequently filed a petition for post-conviction relief (“PCR”), alleging that she never actually admitted to ...
by Mark Wilson
Under ORS 137.225(l)(b), “at any time after ... a dismissal of the charges,” an “arrested person may apply” to the trial court “for an order setting aside the record of arrest.” The court is required to seal the records if it finds after a hearing that “the circumstances and behavior of the applicant” since arrest “warrant setting aside the conviction, or arrest record.” ORS 137.225(3). If the applicant “has been convicted of one of” 13 different offenses, however, the court may refuse to seal the records upon finding “by clear and convincing evidence that granting the motion would not be in the best interests of justice.” ORS 137.225(12).The Oregon Court of Appeals held that a lower court improperly refused to seal a criminal defendant’s arrest record after the prosecution dismissed the charges against her.
In May 2015, Kimberly Anne Malm was arrested and charged with manslaughter, vehicular assault, driving under the influence of intoxicant, and reckless driving. The trial court subsequently “entered a judgment dismissing the charges without prejudice” at the request of the prosecution.
Malm then moved, pursuant to ORS 137.225(l)(b), for ...
by Christopher Zoukis
October 2nd of each year marks the Annual International Wrongful Conviction Day. As of October 2, 2017, the third anniversary of the commemorative event, 351 people have been exonerated based on DNA analysis alone. Those 351 served an aggregate 4,788 years in prison prior to exoneration. DNA exonerations are just the tip of the iceberg; the United States is a world leader in convicting and imprisoning its citizens for crimes that they did not commit.
The Innocence Project tracks the data associated with wrongful convictions. To mark the 2017 Annual International Wrongful Conviction Day, researchers with the Innocence Project looked at how state governments compensate those who have been exonerated. The analysis revealed a patchwork of laws and processes that vary greatly from state-to-state and, in some cases, are absurdly unfair.
Initially, it’s worth noting that 18 states have no compensation laws at all. Of the 32 states that have some mechanism in place, compensation ranges from $5,000 per year of incarceration with a maximum of $25,000 total (Wisconsin) to $80,000 per year with no ceiling and an annuity set at the same amount (Texas). Shame on Wisconsin; that’s insulting.
When an exoneree ...
by David Reutter
The North Dakota Supreme Court held a defendant cannot be criminally prosecuted for refusing a warrantless urine test incident to an arrest for driving under the influence of a controlled substance.
In the early morning hours of May 5, 2016, Steven Helm was pulled over for driving without headlights. During the course of the traffic stop, the officer suspected Helm had been driving under the influence of a controlled substance and placed him under arrest. He refused to submit to a warrantless urine test incident to the arrest.
As a result, the State charged him with refusing to submit to a chemical test under N.D.C.C. § 39-08-01. The district court granted his motion to dismiss, ruling that a warrantless urine test incident to arrest is like a warrantless blood test incident to arrest prohibited by the U.S. Supreme Court in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). The State appealed, and the North Dakota Supreme Court affirmed the district court order.
The Court began its discussion by stating that a urine test constitutes a search for Fourth Amendment purposes. It then discussed the three-factor test in assessing the intrusion in collecting ...
by Christopher Zoukis
The Kentucky Supreme Court has clarified exactly what the “adoptive admission” exception to the hearsay rule is under Kentucky law and how it applies in a criminal trial. The teachable moment came in a November 2, 2017 decision in which the Court upheld a defendant’s manslaughter conviction.
Daniel Lee Moss was involved in an altercation at his home in which Shawn Thompson was shot and killed. When the police arrived, they found Thompson lying at the bottom of the front steps, face up. Sarah Sanders, who had been visiting Moss with Thompson, was hugging Thompson and screaming.
Deputy Johnson talked to Moss, Christina Layle, and Sanders in order to determine what happened. While Moss was explaining his version of events that reportedly included exculpatory elements, Sanders interrupted and screamed, “You shot him in the back for no reason.” Rather than respond to her outburst, Moss remained silent and partially covered his face and mouth with his hands.
Moss was charged with murder and tampering with physical evidence. A jury convicted him of second-degree manslaughter on the theory that he shot Thompson “in an actual but mistaken and wantonly-formed belief” that he had to in self-defense. He ...
by Christopher Zoukis
The Colorado Supreme Court ruled that a criminal defendant may fire retained counsel without any showing of good cause when seeking to replace retained counsel with court-appointed counsel. This is an issue of first impression in Colorado; the Court noted that the U.S. Supreme Court has not answered this precise question.
Jesus Ronquillo was charged with several crimes related to the alleged sexual abuse of his son. Several days before trial, he decided that it was time to fire his attorney because he was “tired of throwing away [his] money” on an attorney whom he believed was “in cahoots” with the prosecutor. Ronquillo’s attorney then moved to withdraw, citing a complete breakdown in communication.
The trial court denied both requests, ruling that non-payment was not a sufficient reason to allow a change in attorneys so close to trial. Faced with the choice of either keeping his retained counsel or representing himself, Ronquillo chose to keep his lawyer and was convicted. On appeal, he argued that he should have been allowed to fire his attorney at will, regardless of whether he was seeking appointed counsel.
The Court of Appeals ruled that Ronquillo did have the right to ...
by Richard Resch
The U.S. Court of Appeals for the Tenth Circuit ruled that a protective sweep of a house conducted incident to the lawful arrest of an occupant was too broad and thus was not permissible under the Fourth Amendment. The Court reversed the district court’s denial of the defendant’s motion to suppress evidence obtained as a result of the protective sweep.
U.S. Marshals had an arrest warrant for Stephen Bagley, a convicted felon wanted for violating the terms of his supervised release. To execute the arrest warrant, marshals obtained a search warrant granting entry into a house for the sole purpose of locating and arresting Bagley. Marshals did not have any evidence or reason to believe that any dangerous individual, other than Bagley, was inside the house.
Bagley was reportedly in the southeast bedroom when marshals entered the house. He eventually surrendered near the front door and was handcuffed. Marshals then conducted a protective sweep of the entire house, and in the bedroom where Bagley had been, they found ammunition and drugs. Based upon that discovery, marshals obtained a search warrant for the entire house for firearms, ammunition, and drugs. During the subsequent search, they found ...
by Mark Wilson
The Georgia Supreme Court held that a criminal defendant was not denied effective assistance of trial counsel when his attorney failed to object to hearsay and a detective’s improper comment on his pre-trial silence. Rather, the hearsay was admissible under a co-conspirator exception to the hearsay rule, and he failed to show that he was prejudiced by the comment on his silence.
Willie Dublin, Darnell Mitchell, Dewayne Reynolds, and others were celebrating New Year’s Eve at Reynolds’ home on December 31, 2012. Dublin possessed a handgun. Mitchell, Reynolds, and Dublin discussed robbing Terry Slack, who lived one street away, because they believed he had marijuana in his shed.
Reynolds’ girlfriend, Judy Cronan, overheard the men discussing their plan to rob Slack. They were later seen in an abandoned lot across from Slack’s house. Mitchell and Reynolds admitted that the three of them went to Slack’s house, and Slack was fatally shot in the back during a robbery attempt.
The three men were charged with murdering Slack. Mitchell and Reynolds provided statements to police and testified against Dublin. Several other witnesses also testified about things they heard the men say before and after the crime.
Dublin was found ...
by Richard Resch
The U.S. Court of Appeals for the Fourth Circuit held that the U.S. District Court for the Eastern District of Virginia abused its discretion in dismissing Anthony Juniper’s Brady claim without holding an evidentiary hearing.
This case is discussed at greater length than is customary for case coverage in CLN. The reason for the departure from the norm is that it is especially noteworthy for at least three reasons: (1) any instance of federal habeas reversal is rare, (2) the opinion serves as an exemplar of Brady claim analysis, and (3) the Court issued a remarkable rebuke to the state’s trial and post-conviction legal team for persistently violating its Brady obligations.
On January 16, 2004, Keshia Stephens and three relatives were murdered inside their Norfolk, Virginia home. On the morning of the killings, Juniper went to Stephens’ home to retrieve his belongings, where he was heard arguing with her.
Based upon statements made in 911 calls about hearing shots fired, together with witness statements, prosecutors believed that the murders occurred sometime before 12:45 p.m. Juniper arrived at the home at about 10:20 a.m. and left prior to 12:45 p.m ...
by Mark Wilson
The United States Court of Appeals for the Fifth Circuit vacated several sex offender supervised release conditions, finding that the lower court abused its discretion in imposing the conditions.
In 1998, Chanda Huor, 16, pleaded guilty to raping a four-year-old girl. He was sentenced to several years in prison and required to register as a sex offender for life.
After his 2005 release, Huor initially registered, but was eventually convicted of failing to register several times. In early 2013, Huor updated his registration with the Virginia State Police, but he did not update his registration when he moved to San Antonio, Texas in March, 2013.
A Virginia arrest warrant was issued, and the United States Marshals eventually tracked Huor to Texas, where he’d lived for almost one year with his girlfriend, Crystal Quesada and her eight-year-old son. Quesada knew Huor as Kevin Thom.
By the time marshals contacted Quesada, Huor had moved in with another girlfriend, Rosemary Valdez, and her two young daughters. Valdez also knew Huor as Thom and was not aware that he was a convicted sex offender.
Huor was arrested at Valdez’s residence and charged with failing to register under the Sex Offender Registration ...
by Dale Chappell
The American Civil Liberties Union (“ACLU”) and Electronic Frontier Foundation (“EFF”) filed a federal lawsuit against the Department of Homeland Security (“DHS”), Customs and Border Protection, and Immigration and Customs Enforcement in the United States District Court for the District of Massachusetts on September 13, 2017. The suit claims that unwarranted and unsuspicious searches of electronic devices, such as smart phones, at U.S. borders are a “major threat to privacy and civil liberties,” according to the ACLU.
From 2015 to 2016, there was nearly a 125 percent increase in device searches at U.S. borders, according to data cited by the ACLU and EFF. The lawsuit takes aim at a 2009 DHS directive titled “Border Searches of Electronic Devices,” which authorizes border agents to conduct “warrantless and suspicionless searches and confiscations of mobile electronic devices.” The lawsuit contends: “Because government scrutiny of electronic devices is an unprecedented invasion of personal privacy and a threat to freedom of speech and association, searches of such devices absent a warrant supported by probable cause and without particularly describing the information to be searched are unconstitutional.”
“The government cannot use the border as a dragnet to ...
The Massachusetts Executive Office of Public Safety and Security released a bombshell 126-page report on October 16, 2017 that found a practice of intentionally withholding evidence from defense attorneys by the state’s Office of Alcohol Testing (“OAT”). Melissa O’Meara, technical leader of the office, was fired in the wake of the damning report.
The investigation was launched in August 2017 after defense lawyers alleged that OAT was not turning over exculpatory evidence related to the accuracy of Breathalyzer machines. The attorneys, who represent 750 DUI defendants in a civil suit, were provided with 1,972 worksheets documenting properly working machines and 11 failures. But the report discovered that OAT had withheld another 419 worksheets documenting improperly calibrated machines.
The report further confirmed what the lawyers suspected: The damning documents were intentionally withheld pursuant to an “unwritten policy not to turn these documents over to any requester.”
“We conclude that OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded … and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions,” the report stated.
by Derek Gilna
Frank Walton, a writer for the Daily Kos, asserts that data compiled and reported by The Guardian newspaper show that since 9/11, deaths from police shootings exceed deaths from terrorist attacks on Americans. According to Walton, “(w)ith an average of 1,900 people killed annually since 2001, that would be 32,200 Americans who’ve died at the hands of police during that period. That is more than five times the combined number of soldiers (6,687) we’ve lost both in the Iraq war (4,491) and the war in Afghanistan (2,396).”
The Guardian reports that “research on police killings in 2015 and 2016 ... using open source news reports shows the chance of being killed by police per million citizens is 10.13 for Native Americans, 6.66 for African Americans, 3.23 for Latinos, 2.9 for Caucasians, and 1.17 for Asians. This means Native Americans are five times more likely to be killed by police, and African Americans more than twice as likely to be killed.”
Although the U.S. has spent billions of dollars for overseas military operations and set up an extensive domestic security apparatus headed by the Department of Homeland Security, few resources ...
by Christopher Zoukis
There is an oft-quoted and deeply ingrained sentiment in police circles, one whose logic seems unassailable at first glance: The number one duty of a police officer is to go home to his or her family at the end of the shift.
This feels right. Police operate in a dangerous world of unknowns. They are tasked with intervening in volatile situations. Perhaps more importantly, police officers must often enter a scenario with virtually zero knowledge of the circumstances.
But Dallas News reporter Steve Blow asked a very provocative question: If the number one priority is an officer’s safety, does he or she have carte blanche to shoot first and ask questions later?
In an era of ever-increasing violence at the hands of the police (or perhaps the more accurate explanation is that the frequency of brutality is not increasing, rather it’s being captured on video with increasing frequency), it may be time to seriously question the propriety of this seemingly axiomatic sentiment. Everyone wants police officers to make it home safely at the end of their shift. But the reality is that every law enforcement officer voluntarily chooses to put on the uniform; no one is forcing ...
by Derek Gilna
"Money bail,” the process by which courts seek to guarantee a defendant’s appearance in court by forcing him or her to post money before release, has been under assault on several fronts. Prisoner rights advocates have proven in several lawsuits that the system is inherently discriminatory against the poor, who languish in jail while more affluent defendants are able to gain release from custody.
Now an organization called Bail Bloc, launched in November of 2017 by a group of tech experts, prisoner rights advocates, and artists, has partnered with The New Inquiry to bring the power of blockchain technology to assist in the posting of bond. The process requires the download of an app onto a computer, and it then mines for cryptocurrency, which is then converted to U.S. dollars and made available to the Bronx Freedom Fund for the posting of bail for indigent defendants.
The Bronx Freedom Fund is a “nonprofit with a revolving fund to pay bail for people accused of misdemeanors. Our goal is to keep people in their communities while they await trial—and to fight for a system that no longer criminalizes poverty.” As the Fund correctly notes, “Poverty ...
by Topher Sanders, ProPublica
American Bar Association monitors report misdemeanor defendants in Nashville often aren’t told they are entitled to a lawyer even when their charges mean they could end up behind bars.
Later that day in September 2016, a group of five defendants was called up by a local prosecutor and offered the previously arranged plea deals, some of which might have resulted in days behind bars. One defendant asked to see a judge. The prosecutor said that was not possible, and that her only choice at that moment was to plead guilty, or to plead not guilty and go to trial. The defendant could only speak to the judge, the prosecutor said, if she rejected the plea offer. Again, none of the defendants was told they had the right to see a lawyer before entering any plea.The defendants were booked, photographed, fingerprinted and then led into Court 1A in the county courthouse in Nashville. There was no judge. Prosecutors handling the misdemeanor cases invited the accused who were interested in pleading guilty to step forward and finalized plea deals for suspended sentences and an array of fines. There were no defense lawyers, nor were any of ...
by Christopher Zoukis
The Fair Punishment Project (“FPP”), a criminal justice reform group, released a report in November 2017 detailing an “epidemic” of Brady violations taking place in criminal courts across the country.
The U.S. Supreme Court ruled in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny that the prosecution is duty-bound to disclose any information to the defense, before trial, all material relevant to guilt or punishment within the actual or constructive knowledge or possession of anyone acting on behalf of the government that could be favorable to the defendant. To do otherwise, ruled the Court, would offend notions of fair play and violate the Due Process Clause of the U.S. Constitution.
“Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly,” wrote the Court. Prosecutors should not be the “architect of a proceeding that does not comport with standards of justice,” observed the Court.
Brady has been the law of the land for over half a century. But the Brady rule is routinely violated by prosecutors. The situation has grown so ...
by Dale Chappell
Counts in a multicount indictment that are dismissed without prejudice do not prevent a judgment of conviction on other counts from being “final and appealable,” the Ohio Supreme Court held.
Andrew Jackson was indicted on counts of kidnapping, aggravated robbery, and grand theft. He proceeded to a jury trial and was found guilty on the aggravated robbery and grand theft counts, but the jury was unable to reach a verdict on the kidnapping counts. The trial court declared a mistrial on the kidnapping counts, and the State orally moved to dismiss those counts, which the Court did without prejudice.
The trial court sentenced Jackson to a six-year term of incarceration and entered a judgment on the convictions, which included in the judgment entry the dismissal of the kidnapping counts.
When Jackson appealed his conviction, the appellate court sua sponte dismissed Jackson’s appeal for lack of a final, appealable order, holding that “in a criminal case, a dismissal without prejudice does not constitute a final order” and therefore is not appealable. The State, however, filed a motion for reconsideration and to certify a conflict with another district court of appeals’ decision holding the opposite. The State’s motion ...
by Christopher Zoukis
An explosive investigation by The New York Times has revealed the existence of a secret account used by agents at the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) to dispense millions of untraceable private dollars to informants and agents for over seven years.
The story reads like something straight out of Hollywood. In 2006, Agent Thomas Lesnak, a veteran agent specializing in tobacco smuggling investigations in Bristol, Virginia, recruited an established tobacco distributor to open a warehouse in the city and work undercover as an ATF informer. The distributor, Jason Carpenter, partnered with Christopher Small and soon had a booming business selling untaxed cigarettes and tobacco to smugglers. ATF agents worked the floor, tracked the sales, and sometimes arrested the smugglers.
“It got to the point where we were, you know, warehouse workers as opposed to criminal investigators,” Agent Lesnak said last year in a confidential deposition, according to The New York Times.
Business was good, and profits were up. But where did the profits go? Carpenter was running a real company with legitimate money, but sometimes he was working for the government. In a normal operation such as this, there would be no question ...
by Mark Wilson
The United States Court of Appeals for the Eighth Circuit reversed a man’s convictions for interfering with two forestry workers, ruling that the prosecution and court constructively amended his charges.
Thomas McDill owned property adjacent to the Black Hills National Forest in South Dakota. On May 20, 2013, McDill went to the United States Forestry Service (“USFS”) district office to ask about slash piles of bush and tree trimmings on forest land.
Essentially, over the course of several weeks, he persistently and aggressively questioned two USFS workers, Patricia Hudson and Gwen Lipp, on various matters related to USFS policies. They reported McDill to USFS law enforcement officer Eric Nelson, who eventually issued citations to McDill for “intentionally interfering” with a “USFS employee in the process of her duties” with respect to Hudson and a second citation for “harassment + interference w/USFS employee in process of her duties” with respect to Lipp, both in violation of 36 C.F.R. § 261.3(c).
A person violates 36 C.F.R. § 261.3(c) by threatening, intimidating, or intentionally interfering with a USFS employee. During a bench trial, the court convicted McDill on both citations on the ...
by David M. Reutter
Pretrial diversion programs have traditionally been used to “divert” criminal defendants to drug rehab and counseling programs. Some Louisiana prosecutors, however, have used it to create an industry that diverts traffic ticket revenue to them.
On the way home from work one day, Jay Dixon was issued a ticket for speeding. As the deputy handed him the ticket, he told Dixon to turn it over. On the back were instructions to pay the $175 fine by mail with a money order made out to “DA P.T.D.” The deputy told him that if he paid the ticket that way, it would not go through court or land on his record.
“Who wouldn’t want to do that?” Dixon asked. The problem with the P.T.D., which stands for pre-trial diversion, is that it contributes to the defunding of public defenders. As the Louisiana public defender, Dixon receives requests for money from local public defenders who have been hurt by pre-trial diversion programs involving traffic tickets.
Louisiana prosecutors began using P.T.D. for tickets after public defenders said they needed $100 from each court case, which was an increase from $35. Prosecutors and ...
Alabama: Two former officers with the Southside Police Department were arrested in early December 2017 on several sex crime charges. Jonathan Perry Works, 41, and Brian Edward Walker, 44, were both booked into the Etowah County Jail. Both former cops have been charged with various sex crimes involving a member of the opposite sex who was incapable of consent by reason of being physically helpless or mentally incapacitated. The pair were initially placed on leave with pay but subsequently resigned.
Arizona: If anyone finds a black 9mm Glock 19 handgun bearing serial number YHC 944, kindly contact the Prescott Valley Police Department; they’re desperate for its immediate return. It belongs to Chief Bryan Jarrell. He left it in a restroom stall inside a public library on November 9, 2017 but somehow didn’t notice it missing until four days later. On December 13, town manager Larry Tarkowski suspended Jarrell for two days without pay, ordered him to complete a firearm safety course, and required him to pay the cost of replacing the lost handgun.
California: Keith Foster, former deputy chief of the Fresno Police Department, clearly took the old saying “if you can’t beat them, join them” literally. On November 13 ...