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Prisoner Education Guide

Criminal Legal News: March, 2018

Issue PDF
Volume 1, Number 4

In this issue:

  1. Civil Asset Forfeiture: Unfair, Unjust, Un-American (p 1)
  2. $9.5M Settlement Approved by Chicago City Council for Yet Another Excessive Force Case (p 9)
  3. Prosecutor’s “Animosity” Toward Defense Leads Oregon Appeals Court to Vacate Convictions (p 10)
  4. Overworked Missouri Public Defenders Fear Suspensions and Firing (p 10)
  5. $5.5 Million Verdict Against LAPD for Taser Death of Former Marine (p 11)
  6. Ninth Circuit Warns Prosecutors Against Interfering With Defendants’ Legal Representation; Reverses First-Degree Murder Convictions (p 12)
  7. Oregon Appeals Court: Defense Counsel Constitutionally Inadequate in Sexual Abuse Case (p 13)
  8. Unjust Sexual Offense Laws: Insanity and Hope (p 14)
  9. Ninth Circuit: Government Cannot Seize Cash Based Solely on Money’s Intended Use (p 15)
  10. Survival Tip: Don’t Call Cops If You’re Disabled (p 16)
  11. San Francisco and San Diego Expunging Marijuana Convictions Under Prop 64 (p 16)
  12. Iowa Supreme Court: Search of Third-Party at Premises Subject to Warrant Violates State Constitution (p 17)
  13. Rhode Island Supreme Court Rules “Backseat Driver” Is a Real Thing Under Criminal Statutes (p 18)
  14. Massachusetts Supreme Court: Permanent Ban on Sealing Record of Sex Offender Unconstitutional (p 18)
  15. California Court of Appeal: Prejudice “Presumed” Where Jury Discussed Defendant’s Decision Not to Testify (p 19)
  16. Second Circuit Vacates 60-Month Sentence in Model Guidelines Sentencing Decision (p 20)
  17. California Legalization of Marijuana Allows Convicted to Petition (p 21)
  18. U.S. Murder Clearance Rates Among Lowest in the World (p 22)
  19. Jury Nullification: A Crucial Check on Government Power (p 23)
  20. Seventh Circuit: Capital Case Defendant Denied Pro Se Right Granted Habeas Relief (p 24)
  21. Hawaii Supreme Court: Defendants Entitled to Hearing Within 2 Days (p 25)
  22. $2 Million to Disabled Syracuse Man Tased by Cops (p 25)
  23. Court of Criminal Appeals of Texas: Holds Trial Objection Enough to Preserve Issue for Appeal (p 26)
  24. Mississippi Capital Murder Conviction Reversed Due to Prosecutorial Misconduct (p 26)
  25. Fifth Circuit: “Fugitive from Justice” Enhancement Requires Intent to Avoid Prosecution (p 27)
  26. DNA Evidence: New Jersey Court Vacates Two 1996 Murder Convictions (p 28)
  27. Curb False Confessions: Provide Suspects With Lawyers (p 28)
  28. Use of Sentencing Mitigation Videos Grows (p 29)
  29. New York Court of Appeals: Bail Bondsmen May Not Keep Premium If Defendant Not Released (p 30)
  30. First Circuit: Plain Error Standard Met When Trial Court Emphasized Erroneous Jury Instruction (p 30)
  31. After 21-Year Imprisonment, Wrongfully Convicted Nevada Man Pardoned (p 31)
  32. Georgia Supreme Court Instructs Federal Courts on Its Habeas Review Process (p 32)
  33. Houston Police End Use of Error-Prone Drug Field Tests (p 32)
  34. Idaho Supreme Court: Suspicionless Fishing Expeditions Not Tolerated (p 33)
  35. California Court of Appeal: Prior Felony Does Not Convert “Wobbler” Into Felony (p 34)
  36. CA Court Rejects Inventory Search and Inevitable Discovery Arguments in Warrantless Search Case (p 34)
  37. Massachusetts Supreme Court: Sleeping Juror Is “Structural Error,” Requires Intervention (p 35)
  38. Few Indigent Defendants Have Lawyer at Arraignment (p 36)
  39. Ohio Supreme Court: Courts Can Seal Case Records Prior to Expiration of Statute of Limitations (p 36)
  40. Georgia Supreme Court Reverses Mutually Exclusive Guilty Verdicts (p 37)
  41. Two-Party Consent Law Forces Dismissal of 61 Cases in Washington Sting (p 37)
  42. Washington Court of Appeals Reverses Murder Conviction Due to Prejudicial PowerPoint (p 38)
  43. Louisiana Indigent Defendants Face Death Penalty Without Lawyers (p 38)
  44. Texas Court of Criminal Appeals: Right to Appeal Judge’s Questioning Not Forfeited by Failure to Object (p 39)
  45. Research Needed: Do Drug Dogs Respond to Drugs or Handler? (p 40)
  46. Questioning the Use of DNA Testing Software in Criminal Prosecution (p 40)
  47. DNA Sketches Answer Prayers, Raise Concerns (p 41)
  48. Driver’s License Required for Conviction as Florida Habitual Traffic Offender (p 41)
  49. News in Brief (p 42)
  50. Maine Supreme Court: State Must Provide Evidence to Support Probation Revocation (p 42)

Civil Asset Forfeiture: Unfair, Unjust, Un-American

by Christopher Zoukis

Founding Father George Mason once said, “When the same man, or set of men, holds the sword and the purse, there is an end of liberty.” Mason, along with many other founders of the United States of America, believed strongly in the separation of government powers ...

$9.5M Settlement Approved by Chicago City Council for Yet Another Excessive Force Case

by Derek Gilna

The Chicago City Council approved yet another multi-million dollar settlement for excessive force on September 5, 2017, but this time, some members complained about the steep tab.  

Jose Lopez was rendered permanently disabled after being Tased by a Chicago Police Officer. After a two-week trial, the ...

Prosecutor’s “Animosity” Toward Defense Leads Oregon Appeals Court to Vacate Convictions

by Mark Wilson

The Oregon Court of Appeals concluded that a prosecutor’s criticism of defense counsel during closing argument “crossed the boundary of permissible argument and prejudiced defendant’s right to a fair trial.”

Doug Brunnemer was tried on several Oregon domestic violence offenses. The State’s case was based largely ...

Overworked Missouri Public Defenders Fear Suspensions and Firing

by Mark Wilson

"They just demonstrated they’re going to prosecute us, and the Supreme Court just demonstrated that they’re going to punish us,” said Michael Barrett, director of the Missouri public defender system, in response to the suspension of an overworked lawyer.

Karl William Hinkebein is a 21-year veteran ...

$5.5 Million Verdict Against LAPD for Taser Death of Former Marine

by Derek Gilna

The City of Los Angeles has beenhit with a $5.5 million jury verdict in November of 2017 for the death of a former Marine who was Tased six times in a row by the Los Angeles Police Department (“LAPD”) while they were attempting to restrain him ...

Ninth Circuit Warns Prosecutors Against Interfering With Defendants’ Legal Representation; Reverses First-Degree Murder Convictions

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit determined that James Michael Wells did not receive a fair trial, reversed his first-degree murder convictions, and remanded for a new trial after the case was reassigned to a different judge to preserve the appearance of justice ...

Oregon Appeals Court: Defense Counsel Constitutionally Inadequate in Sexual Abuse Case

by Mark Wilson

The Oregon Court of Appeals upheld a post-conviction court’s judgment that a criminal defendant was denied effective assistance of trial counsel when his lawyer failed to object to an expert witness vouching for the credibility of the alleged victim’s sexual abuse claim. As such, the lower court ...

Unjust Sexual Offense Laws: Insanity and Hope

by Ken Abraham and Brenda Jones

Unjust Laws

Over the past 25 years, the U.S. has developed a pernicious system of sexual offense laws, including increased sentences and public registries of offenders. Based largely on unfounded hysteria surrounding a tiny fraction of high-profile cases, these laws today are a ...

Ninth Circuit: Government Cannot Seize Cash Based Solely on Money’s Intended Use

by Christopher Zoukis

The Ninth Circuit Court of Appeals ruled that the Eighth Amendment to the U.S. Constitution prohibits the government from seizing cash intended for drug use unless some step was taken toward actually using the money for drugs.

The September 5, 2017 decision involved the unfortunate circumstances ...

Survival Tip: Don’t Call Cops If You’re Disabled

by Dale Chappell

Because police are trained to shoot first and ask questions later, calling on them to defuse a situation involving someone with special needs should be a last resort. The problem is that when cops are trained to be military warriors instead of peace officers, we’re all viewed ...

San Francisco and San Diego Expunging Marijuana Convictions Under Prop 64

San Francisco District Attorney George Gascón is acting upon a provision of Proposition 64 that has received relatively little media attention but is nonetheless extremely significant for tens of thousands of individuals—reduction, dismissal, or expungement of certain previous marijuana convictions.

Most people are aware that Prop 64 legalizes the possession ...

Iowa Supreme Court: Search of Third-Party at Premises Subject to Warrant Violates State Constitution

by Richard Resch

Police obtained a search warrant for a residence. Jeffrey Sickles was identified as a person to be searched in the warrant. An attached police affidavit stated that his sister listed the residence as her home address. When police executed the search warrant, Danielle Brown was located in ...

Rhode Island Supreme Court Rules “Backseat Driver” Is a Real Thing Under Criminal Statutes

by Christopher Zoukis

The Rhode Island Supreme Court has determined that a passenger in the back seat of a vehicle who lunges forward and jerks the steering wheel qualifies as an “operator” of the vehicle.

The November 14, 2017 opinion considered the criminal case against Luke Peters. On August 6 ...

Massachusetts Supreme Court: Permanent Ban on Sealing Record of Sex Offender Unconstitutional

by Dale Chappell

In 1995, Kristi Koe was convicted of rape and abuse of a child. The underlying acts occurred in 1990. The Sex Offender Registry Board (“SORB”) recommended she be classified as a level two sex offender, and she accepted. Her obligation to register commenced in 2003.

In 2013 ...

California Court of Appeal: Prejudice “Presumed” Where Jury Discussed Defendant’s Decision Not to Testify

by Dale Chappell

A jury’s multiple discussions about why a defendant chose not to testify, despite the court’s warnings not to consider them, were sufficient misconduct to presume prejudice, the Court of Appeal of California for the Fourth Appellate District held November 16, 2017.

Francisco Solorio was charged with first ...

Second Circuit Vacates 60-Month Sentence in Model Guidelines Sentencing Decision

This is a model guidelines sentencing decision filled with nuggets of pure gold in which the district judge (Katherine Forrest of the S.D.N.Y.) was sharply rebuked for imposing an above-guidelines sentence in an illegal reentry case that was three times the top of the guidelines range—a sentence ...

California Legalization of Marijuana Allows Convicted to Petition

by Derek Gilna

Proposition 64, which legalizes the sale of recreational marijuana in the state of California, also has a less publicized benefit for those with state marijuana felonies on their record. It allows them to petition to have their convictions reduced or dismissed.

This has the potential to be ...

U.S. Murder Clearance Rates Among Lowest in the World

by Matt Clarke

Statistically, U.S. law enforcement agencies are the worst crime solvers in the Western world. According to official data, there are arrests for about one-eighth of burglaries, about one-third of rapes, and about two-thirds of murders. But official methods of reporting can distort and exaggerate murder clearance ...

Jury Nullification: A Crucial Check on Government Power

by Christopher Zoukis

The power of government in everyday American life cannot be overstated. In the criminal justice setting, the government is essentially all-powerful. When accused of a crime, a citizen faces arrest at the hands of armed police, incarceration in government-owned jails (for the most part), and prosecution by ...

Seventh Circuit: Capital Case Defendant Denied Pro Se Right Granted Habeas Relief

by Christopher Zoukis

The U.S. Court of Appeals for the Seventh Circuit granted a state prisoner’s petition for habeas corpus relief because the prisoner was denied his right to proceed pro se at trial, in violation of the U.S. Constitution and U.S. Supreme Court precedent.

The December ...

Hawaii Supreme Court: Defendants Entitled to Hearing Within 2 Days

by Dale Chappell

There is a “strong presumption” a defendant held in custody beyond two days without a preliminary hearing (or other method to show probable cause), absent “compelling circumstances,” must be released, the Hawaii Supreme Court held on November 21, 2017.

When Si Ufaga Moana and Jayvan Curioso ...

$2 Million to Disabled Syracuse Man Tased by Cops

by Dale Chappell

The city of Syracuse, New York agreed to settle a lawsuit and pay $2 million to Brad Hulett, a disabled man Tased by city cops after he refused to sit down on a bus.

Video from the May 3, 2013 incident showed Hulett being ordered by two ...

Court of Criminal Appeals of Texas: Holds Trial Objection Enough to Preserve Issue for Appeal

by Dale Chappell

When counsel objects at trial to a particular issue—even if it had failed to raise it in a pre-trial written motion—that objection is enough to “preserve” the issue for review on appeal, the Court of Criminal Appeals of Texas held.

During an armed robbery of a mobile ...

Mississippi Capital Murder Conviction Reversed Due to Prosecutorial Misconduct

by Christopher Zoukis

The Mississippi Supreme Court reversed the conviction and death sentence of a man accused of the capital murder of a two-year-old child. The reversal resulted from several errors made at trial, as well as the taint of prosecutorial misconduct.

The November 9, 2017 opinion reversed the conviction ...

Fifth Circuit: “Fugitive from Justice” Enhancement Requires Intent to Avoid Prosecution

by Dale Chappell

The government must show that a defendant had the “express intent” in fleeing to avoid prosecution to prove he was a “prohibited person” under the “fugitive from justice” definition with respect to owning a semiautomatic firearm capable of accepting high capacity magazines, the United States Court of ...

DNA Evidence: New Jersey Court Vacates Two 1996 Murder Convictions

by Mark Wilson

After spending 24 years behind bars for murder, Eric Kelley and Ralph Lee walked out of a New Jersey prison in November 2017. Weeks earlier, New Jersey Superior Court Judge Michael Portelli had vacated their convictions for the 1993 murder of a store clerk after new DNA ...

Curb False Confessions: Provide Suspects With Lawyers

by Derek Gilna

According to the nonprofit National Registry of Exonerations, Cook County, Illinois has a false confession rate three times higher than the national average. In November 2017, Cook County Prosecutor Kim Foxx dropped criminal cases against 15 men because of police misconduct, a development the Chicago Tribune referred ...

Use of Sentencing Mitigation Videos Grows

by Derek Gilna

Defendants who plead guilty on both the state and federal level generally are interviewed by the sentencing jurisdiction’s probation department, which seeks background information regarding the criminal history, family history, and health history of the defendant in order to assist the judge in determining an appropriate sentence ...

New York Court of Appeals: Bail Bondsmen May Not Keep Premium If Defendant Not Released

New York Court of Appeals ruled that bail bondsmen may not retain the premium paid on a criminal defendant’s behalf when bail is denied and the defendant is not released from custody.

In 2011, Arthur Bogoraz was indicted on state fraud charges with bail set at $2 million. His wife ...

First Circuit: Plain Error Standard Met When Trial Court Emphasized Erroneous Jury Instruction

by Dale Chappell

The trial court’s repeated inclusion of an erroneous element in the jury instructions amounted to a “plain error,” which led the U.S. Court of Appeals for the First Circuit to vacate the defendant’s conviction.

Jose Lattore-Cacho was convicted by a jury in U.S. District ...

After 21-Year Imprisonment, Wrongfully Convicted Nevada Man Pardoned

by Christopher Zoukis

Fred Steese spent 21 years in prison for a murder that he did not commit. He was granted an Order of Actual Innocence in 2012, but was released from prison only upon entering an Alford plea—not admitting guilt but acknowledging that there is sufficient evidence to prove ...

Georgia Supreme Court Instructs Federal Courts on Its Habeas Review Process

by Richard Resch

On January 16, 2018, the Supreme Court of Georgia issued an instructive per curiam opinion in which it announced the need for it to explain its habeas application review process.

According to the Court, the explanatory opinion was necessitated because “there appears to be significant misunderstanding of ...

Houston Police End Use of Error-Prone Drug Field Tests

by Matthew Clarke

In the summer of 2017, the Houston Police Department announced that it was ending its longstanding practice of using $2 field test kits for drugs that had frequently been used to persuade defendants to plead guilty—even when they were innocent.

In December 2016, the Timothy Cole Exoneration ...

Idaho Supreme Court: Suspicionless Fishing Expeditions Not Tolerated

by David Reutter

The Idaho Supreme Court reversed a district court’s denial of a motion to suppress evidence obtained in a suspicionless fishing expedition by the arresting officer.

Matthew Cohagan was on a street corner in Nampa, Idaho when Officers Curtis and Otto drove by. Curtis thought he resembled an ...

California Court of Appeal: Prior Felony Does Not Convert “Wobbler” Into Felony

by Dale Chappell

The fact that a defendant admitted he had prior qualifying felonies for a Cal Pen Code § 665(a) enhancement does not convert his current “wobbler” into a felony, and the trial judge retained authority under section 17(b) to reduce the wobblers to misdemeanors, the Court ...

CA Court Rejects Inventory Search and Inevitable Discovery Arguments in Warrantless Search Case

by Richard Resch

The Court of Appeal of California, First Appellate District, ruled that evidence obtained in violation of the Fourth Amendment and the California Constitution should have been suppressed, and it reversed defendant’s conviction for possession of a baton in violation of Cal Pen Code § 22210.

On March ...

Massachusetts Supreme Court: Sleeping Juror Is “Structural Error,” Requires Intervention

by Dale Chappell

The Massachusetts Supreme Court reversed convictions for involuntary manslaughter and assault and battery and ordered a new trial because the trial judge failed to conduct voir dire after the prosecutor advised that some jurors fell asleep during trial.

Anthony Villalobos took his murder and assault charges to ...

Few Indigent Defendants Have Lawyer at Arraignment

by Mark Wilson

"Giving defendants a lawyer, treating them with respect, and honoring the Constitution give them more confidence in what we’re trying to do,” observes Michigan District Court Judge Tom Boyd. “That starts with giving them the respect they deserve the minute they walk in the door.” ...

Ohio Supreme Court: Courts Can Seal Case Records Prior to Expiration of Statute of Limitations

by Dale Chappell

A trial court may seal the records of a person whose case has been dismissed without prejudice before the statute of limitations for the offense expires, the Ohio Supreme Court held on September 27, 2017.

In March 2015, Colton Dye was charged by the State for arson ...

Georgia Supreme Court Reverses Mutually Exclusive Guilty Verdicts

by Christopher Zoukis

The Georgia Supreme Court answered an unusual, yet significant, question on December 11, 2017. Can a conviction that requires proof that a rental car was stolen outside of the state coexist with a conviction that requires proof that the same car was stolen in the state? Both ...

Two-Party Consent Law Forces Dismissal of 61 Cases in Washington Sting

Sixty-one of 110 men arrested in an ambitious prostitution sting in Bellevue, Washington in August 2017 have had their cases dismissed. Police who made the arrests recorded audio of part of the operation in violation of Washington state law.

Bellevue Police Department and King County Sheriff’s personnel posted online sex-for-sale ...

Washington Court of Appeals Reverses Murder Conviction Due to Prejudicial PowerPoint

by Richard Resch

The Washington Court of Appeals, Division I determined that the use of specific PowerPoint slides intended to establish the characters of defendant and victim and their actions in conformity therewith amounted to prosecutorial misconduct. The misconduct was both improper and prejudicial. Therefore, it warranted the reversal of ...

Louisiana Indigent Defendants Face Death Penalty Without Lawyers

by Christopher Zoukis

The indigent defense crisis in Louisiana continues, but it is now taking a new and more ominous direction. In order to fund local public defenders, the state has taken $3 million from capital defenders, leaving at least 11 Louisiana defendants who are facing the death penalty without ...

Texas Court of Criminal Appeals: Right to Appeal Judge’s Questioning Not Forfeited by Failure to Object

by Dale Chappell

The right to appeal a judge’s improper questioning of a witness during trial was not forfeited by the defendant’s failure to object contemporaneously because such an error is not forfeitable and can be raised for the first time on appeal, the Court of Criminal Appeals of Texas ...

Research Needed: Do Drug Dogs Respond to Drugs or Handler?

by Christopher Zoukis

The use of drug detecting dogs in law enforcement is ubiquitous across the country. They are a popular tool among police agencies, because a drug dog’s “alert” provides the probable cause necessary to legally search a vehicle without warrant or permission. But are these alerts a response ...

Questioning the Use of DNA Testing Software in Criminal Prosecution

by Christopher Zoukis

The use of DNA evidence in criminal trials has become ubiquitous. Because DNA evidence is highly persuasive to judges and juries, several new tests purport to make positive DNA matches using minuscule amounts of matter, or even matter that has been polluted. As defense attorneys push back ...

DNA Sketches Answer Prayers, Raise Concerns

by Dale Chappell

When Chantay Blankinship was killed in May 2016 in Brown County, Texas, the police had no leads other than DNA found at the crime scene. Her family isolated themselves out of fear the killer could be right next to them. Then they got a break in the ...

Driver’s License Required for Conviction as Florida Habitual Traffic Offender

by David Reutter

The Florida Supreme Court held that possession of a driver’s license is a prerequisite to a conviction as a habitual traffic offender under section 322.34(5), Florida Statutes.

Daryl Miller was charged with a third degree felony on May 21, 2014 for violating § 322.34 ...

News in Brief

California: In Sun Valley, Juan Catalan was nearly convicted of a murder he did not commit. After an eyewitness led police to Catalan, they arrested and interrogated him. Catalan is brothers with Mario Catalan and Jose Ledesma, who allegedly committed two murders. Police suspected Catalan of the May 12, 2003 ...

Maine Supreme Court: State Must Provide Evidence to Support Probation Revocation

by Dale Chappell

The State carries the burden of proving that a probationer has violated his probation in order to support a revocation of probation, the Maine Supreme Court held on December 12, 2017.

Cory Kibbe was sentenced in 2004 to 20 years in prison, with all but four years ...




 

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