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Prisoner Education Guide

Criminal Legal News: February, 2018

Issue PDF
Volume 1, Number 3

In this issue:

  1. Have the Wars on Drugs and Terror Transformed the U.S. Into a Police State? (p 1)
  2. Eighth Circuit: Illinois Burglary Conviction Not Valid Predicate Offense for ACCA Purposes (p 7)
  3. From the Editor (p 8)
  4. District Attorney in New York and Aide Indicted for Covering up Beating by Police Chief (p 9)
  5. Confronting the Myth in Police-Suspect Knife Confrontations (p 10)
  6. $44.7 Million Awarded to Man Shot by Intoxicated Chicago Police Officer With Troubled History (p 10)
  7. Yes, Lawsuits Are Expensive—But So Is Police Misconduct (p 11)
  8. Habeas Hints: Ineffective Assistance of Trial Counsel - Hints for 2018: IAC #1 (p 12)
  9. Stingray Technology Lets G-Men Into Your Pocket (and Your House, and Your Car...) (p 14)
  10. $5.5 Million Verdict Against Los Angeles Police Department for Taser Death (p 15)
  11. Equivocal Request for Counsel Requires Police to Seek Clarification of Suspect’s Intent Under Oregon Law (p 15)
  12. Second Circuit: Arrest for Not Leaving Sidewalk Entitled to Qualified Immunity (p 16)
  13. The Insanity Defense: It’s Not What You Think (p 16)
  14. New York Court of Appeals: Criminal Trial Judge Cannot Also Be Sole Appellate Judge (p 17)
  15. Oregon Supreme Court Rules Warrantless Entry Into Home in Effort to Obtain Nonconsensual BAC Evidence Not Exigent Circumstance (p 18)
  16. Ohio Supreme Court Holds Exclusion of Evidence Inappropriate Remedy for Violation of Knock-And-Announce Principle Where Search Warrant Issued (p 18)
  17. Georgia Supreme Court Reverses Armed Robbery Conviction, Defendant Lacked Dominion (p 19)
  18. Oregon Court of Appeals Rules Defendant’s Motion to Suppress Satisfied Uniform Trial Court Rule 4.060(1) (p 19)
  19. Washington Supreme Court Grants Full Evidentiary Hearing for Civilly Committed SVP (p 20)
  20. In Historic Move, 15 Cases Related to Crooked Chicago Cop Thrown Out (p 20)
  21. 11th Circuit Rules Counsel Deficient for Failing to Challenge “Usable” Amount in Drug Case (p 21)
  22. Eighth Circuit Upholds Warrantless Search of Cellphone Owned by Person on Supervised Release Due to Diminished Expectation of Privacy (p 22)
  23. Government Attempt to Shoehorn Union Activity into Hobbs Act Violation Rejected by First Circuit (p 22)
  24. 50 Alabama Cities Reform Bail Practices for Poor (p 23)
  25. Massachusetts High Court Vacates OUI Conviction for Improper Jury Instruction in Which Judge Told Jury to Disregard the Absence of Any Sobriety Tests (p 24)
  26. More Than Half of 2015 Police Killings Not Properly Documented in Government Data (p 24)
  27. Vermont Guilty Plea Requires Defendant to Personally Acknowledge Factual Basis for Each Element of the Offenses Charged (p 25)
  28. Oregon Court Vacates Order Refusing to Seal Arrest Record (p 26)
  29. Compensating the Exonerated: State Laws Are Arbitrary and Senseless (p 26)
  30. North Dakota Supreme Court: Warrantless Urine Test Incident to Arrest for DUI Is Unconstitutional Search (p 27)
  31. Kentucky Supreme Court Clarifies Adoptive Admission Exception to Hearsay Rule (p 28)
  32. Colorado Supreme Court: Criminal Defendant Seeking to Fire Paid, Retained Counsel for Court-Appointed Counsel Need Not Show Good Cause (p 28)
  33. 10th Circuit Suppresses Evidence Based on Overbroad Protective Sweep Under Buie (p 30)
  34. Georgia Hearsay Admissible Under Co-Conspirator Exception (p 30)
  35. Fourth Circuit Vacates Brady Claim Denial in Capital Case and Rebukes Prosecutors (p 32)
  36. Fifth Circuit Vacates Sex Offender Supervised Release Conditions (p 34)
  37. “My Phone Was My Life”—Challenging Warrantless Border Searches of Devices (p 34)
  38. Massachusetts Breathalyzer Malfunctions, Evidence Withheld (p 35)
  39. Deaths From Police Shootings Outstrip Deaths From Terrorists Attacks, Wars (p 36)
  40. What Is the Number One Duty of a Police Officer? (p 36)
  41. Cryptocurrency Leveraged to Help People Make Bail (p 37)
  42. Misdemeanor Defendants Facing Jail Time Not Told They Have a Right to Counsel, Bar Association Finds (p 38)
  43. The Fair Punishment Project Details an “Epidemic of Brady Violations” (p 39)
  44. Ohio Supreme Court: Dismissal Without Prejudice Is a Final and Appealable Order (p 40)
  45. Secret ATF Slush Fund Dispensed Millions (p 41)
  46. Eighth Circuit Reverses Convictions Due to Constructive Amendment of Charges (p 42)
  47. Louisiana Prosecutors’ Traffic Ticket Industry Diverting Funds From Public Defenders (p 42)
  48. News in Brief (p 43)

Have the Wars on Drugs and Terror Transformed the U.S. Into a Police State?

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 ...

Eighth Circuit: Illinois Burglary Conviction Not Valid Predicate Offense for ACCA Purposes

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 ...

From the Editor

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 ...

District Attorney in New York and Aide Indicted for Covering up Beating by Police Chief

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 ...

Confronting the Myth in Police-Suspect Knife Confrontations

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 ...

$44.7 Million Awarded to Man Shot by Intoxicated Chicago Police Officer With Troubled History

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 ...

Yes, Lawsuits Are Expensive—But So Is Police Misconduct

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 ...

Habeas Hints: Ineffective Assistance of Trial Counsel - Hints for 2018: IAC #1

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 ...

Stingray Technology Lets G-Men Into Your Pocket (and Your House, and Your Car...)

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 ...

$5.5 Million Verdict Against Los Angeles Police Department for Taser Death

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 ...

Equivocal Request for Counsel Requires Police to Seek Clarification of Suspect’s Intent Under Oregon Law

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 ...

Second Circuit: Arrest for Not Leaving Sidewalk Entitled to Qualified Immunity

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 ...

The Insanity Defense: It’s Not What You Think

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 ...

New York Court of Appeals: Criminal Trial Judge Cannot Also Be Sole Appellate Judge

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 ...

Oregon Supreme Court Rules Warrantless Entry Into Home in Effort to Obtain Nonconsensual BAC Evidence Not Exigent Circumstance

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 ...

Ohio Supreme Court Holds Exclusion of Evidence Inappropriate Remedy for Violation of Knock-And-Announce Principle Where Search Warrant Issued

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 ...

Georgia Supreme Court Reverses Armed Robbery Conviction, Defendant Lacked Dominion

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 ...

Oregon Court of Appeals Rules Defendant’s Motion to Suppress Satisfied Uniform Trial Court Rule 4.060(1)

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 ...

Washington Supreme Court Grants Full Evidentiary Hearing for Civilly Committed SVP

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 ...

In Historic Move, 15 Cases Related to Crooked Chicago Cop Thrown Out

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 ...

11th Circuit Rules Counsel Deficient for Failing to Challenge “Usable” Amount in Drug Case

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 ...

Eighth Circuit Upholds Warrantless Search of Cellphone Owned by Person on Supervised Release Due to Diminished Expectation of Privacy

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 ...

Government Attempt to Shoehorn Union Activity into Hobbs Act Violation Rejected by First Circuit

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 ...

50 Alabama Cities Reform Bail Practices for Poor

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 ...

Massachusetts High Court Vacates OUI Conviction for Improper Jury Instruction in Which Judge Told Jury to Disregard the Absence of Any Sobriety Tests

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 ...

More Than Half of 2015 Police Killings Not Properly Documented in Government Data

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 ...

Vermont Guilty Plea Requires Defendant to Personally Acknowledge Factual Basis for Each Element of the Offenses Charged

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 ...

Oregon Court Vacates Order Refusing to Seal Arrest Record

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 ...

Compensating the Exonerated: State Laws Are Arbitrary and Senseless

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 ...

North Dakota Supreme Court: Warrantless Urine Test Incident to Arrest for DUI Is Unconstitutional Search

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 ...

Kentucky Supreme Court Clarifies Adoptive Admission Exception to Hearsay Rule

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 ...

Colorado Supreme Court: Criminal Defendant Seeking to Fire Paid, Retained Counsel for Court-Appointed Counsel Need Not Show Good Cause

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 ...

10th Circuit Suppresses Evidence Based on Overbroad Protective Sweep Under Buie

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 ...

Georgia Hearsay Admissible Under Co-Conspirator Exception

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 ...

Fourth Circuit Vacates Brady Claim Denial in Capital Case and Rebukes Prosecutors

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 ...

Fifth Circuit Vacates Sex Offender Supervised Release Conditions

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 ...

“My Phone Was My Life”—Challenging Warrantless Border Searches of Devices

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 ...

Massachusetts Breathalyzer Malfunctions, Evidence Withheld

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 ...

Deaths From Police Shootings Outstrip Deaths From Terrorists Attacks, Wars

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 ...

What Is the Number One Duty of a Police Officer?

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 ...

Cryptocurrency Leveraged to Help People Make Bail

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 ...

Misdemeanor Defendants Facing Jail Time Not Told They Have a Right to Counsel, Bar Association Finds

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 ...

The Fair Punishment Project Details an “Epidemic of Brady Violations”

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 ...

Ohio Supreme Court: Dismissal Without Prejudice Is a Final and Appealable Order

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 ...

Secret ATF Slush Fund Dispensed Millions

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 ...

Eighth Circuit Reverses Convictions Due to Constructive Amendment of Charges

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 ...

Louisiana Prosecutors’ Traffic Ticket Industry Diverting Funds From Public Defenders

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 ...

News in Brief

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 ...




 

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