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Prisoner Education Guide

Criminal Legal News: March, 2018

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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. These men knew firsthand the potential for abuse and oppression that exists when a single governing authority has both the means to take property from citizens and the incentive to do so.

The development of civil asset forfeiture in modern America is likely causing George Mason to turn over in his grave. Law enforcement authorities at both the state and federal level use civil proceedings to forfeit assets seized from private citizens allegedly involved in a crime, sometimes without even filing any criminal charges, and then keep the forfeited assets for themselves. This creates a powerful incentive for police agencies to seize whatever property they can get their hands on, which leads to abusive and liberty-threatening policies and practices. Mason was right, and what he observed is taking place all across the country.

Civil asset forfeiture has been around since medieval times. According to the Institute for Justice (“IJ”), a ...

$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 on the testimony of Brunnemer’s wife. While cross-examining the victim, defense counsel highlighted inconsistencies in her testimony. Counsel questioned her about conflicts between her trial testimony and statement to police.

The trial court prohibited defense counsel from saying “supposedly” during cross-examination, finding that the word was argumentative. The court directed counsel to use “allegedly,” instead. The court said counsel could use both terms during closing statements.

Defense counsel again highlighted the inconsistencies in the victim’s testimony during closing argument. The lawyer also used the word “supposedly” multiple times and emphasized that Brunnemer had no obligation to present any evidence to dispute his wife’s version of events, noting that the burden was not his.

During the State’s rebuttal closing argument, the prosecutor criticized defense counsel, accusing her of “mocking” the victim and portraying her as a “moron,” “mistaken,” and “confused.” The prosecutor also said there was no ...

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 of the Missouri State Public Defender System, assigned to the appellate post-conviction relief division. Rejecting his claim that he had a large workload and felt he could not turn down cases, the Missouri Supreme Court suspended his law license indefinitely on September 12, 2017 for failing to communicate with six clients; failing to keep them apprised of the status of their case; and failing to file amended motions for post-conviction relief on their behalf between 2011 and 2013.

Disciplinary counsel had asked the Court to suspend Hinkebein for one year. In a 23-page Supreme Court brief, Hinkebein admitted to the violations. He requested that the Court impose only a reprimand, claiming that his workload and chronic and severe health problems detrimentally affected his performance.

The Court stayed Hinkebein’s suspension, placed him on probation for one year, and ordered him to pay a $1,500 fine. He was also required to ...

$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. Michael Frederick Mears, who was 39 and suffered from myriad physical and mental health issues after he left the military, died in 2014 of cardiac arrest about an hour after he was beaten with batons and fists, pepper sprayed, restrained, and tased on Christmas Eve.            

According to Mears family attorney Dale Galipo, “This is one of the largest wrongful death civil rights verdicts ever.” Galipo said that Mears was acting erratically, so his roommate, fearing for Mears’ safety, called paramedics for assistance. They in turn called the LAPD for assistance when he became delusional and uncooperative. However, in a scenario that unfortunately has become all too common in recent months, when police respond to a call for assistance with someone in a clear mental health emergency, the citizen loses his life due to excessive force.

The coroner concluded that Mears, who suffered from ...

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.

On the morning of April 12, 2012, Richard Belisle and James Hopkins were murdered at the U.S. Coast Guard antenna maintenance facility on Kodiak Island, Alaska. Their co-worker at the facility, Wells, was arrested and charged with first-degree murder. Alaska Federal Public Defender (“FPD”), F. Rich Cutner, was appointed to represent Wells. Cutner successfully moved to have a second court-appointed attorney, Peter Offenbecher, assigned pursuant to 18 U.S.C. § 3005 because it was a capital case. The prosecution team was comprised of at least three attorneys.

On August 5, 2013, the prosecution announced that it would no longer seek the death penalty. Then on August 21, 2013, it filed a motion to have the second court-appointed attorney, Offenbecher, removed from the case because it was no longer a capital case. The prosecution acknowledged that the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, does not ...

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 set aside defendant’s convictions for sodomy, unlawful sexual penetration, and sexual abuse. The Court of Appeals affirmed.

Alan Alne was charged with sexually abusing a five-year-old girl after she told her father that Alne had touched her vagina with his fingers and mouth while babysitting her. The child was taken to CARES child abuse assessment center, where she was evaluated by a doctor and interviewed by Thomas Findlay, a CARES social worker.

The case proceeded to trial, and Findlay testified about his interview of the child. Upon questioning by the prosecutor, Findlay testified that given the child’s age, she likely would not have a basis to allege the conduct unless she had experienced it. The prosecutor asked Findlay whether the child’s allegations, given her age, are something that she would come up with herself had she not been abused. Findlay responded that in light of his training and experience her ...

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 tangled mess and cause considerable injustice. The problems are caused in large measure by lawmakers’ desires to seem tough on crime and their lack of knowledge about the facts.

There is a very broad brush applied to the term “sex offender.” Most, in fact, are not people who have harmed a child or even attempted to harm a child. Being caught urinating behind a bush can land you as a “sex offender,” branded for life. And a steadily increasing proportion are people caught viewing illegal pictures on the internet.

These laws are especially harsh: In Delaware, a conviction for looking at one picture carries a mandatory sentence of two years. Prosecutors charge 25 counts, whether the number of photos found was 25 or 2,500, to force “plea bargains.” Few will risk going to trial facing 50 years in prison, on charges relatively easy to prove. These ...

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 of longtime heroin addicts Charles and Rosalie Guerrero. Both had struggled with heroin addiction since the late-1980s, and both had repeated arrests and convictions for heroin-related incidents.

Such was the case when Rosalie was arrested and detained in Portland, Oregon on charges of possession of heroin with intent to distribute. When Charles and a friend drove to Portland to bail Rosalie out, they ran into a problem. The friend, Virgil Wood, had a criminal record, and when he attempted to post Rosalie’s $11,500 bond, suspicion was aroused. Agent Guy Gino of the Department of Homeland Security was called, and after a drug dog alerted to a drug odor on the currency and in Wood’s car, heroin was found inside the car. Charles Guerrero was arrested and the $11,500 confiscated.

The government then instituted proceedings to seize the currency as proceeds from the distribution of drugs, pursuant to 21 ...

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 as potential threats, constitutional attorney and author John W. Whitehead explained.

According to a study by the Ruderman Family Foundation, “disabled individuals make up the majority of those killed in use-of-force cases that attract widespread attention.” The study further found that many “more disabled civilians experience non-lethal violence and abuse at the hands of law enforcement officers.”

Whitehead pointed out that over a six-month period, police shot and killed someone experiencing a mental health crisis every 36 hours. His advice? Don’t call the cops if you are autistic, hearing impaired, mentally ill, elderly, suffer from dementia, or disabled in any way that might hinder your ability to understand (and immediately comply with) the cops. He provided several recent examples of the mortal danger posed by police responding to calls involving persons with disabilities.

Police in Oklahoma shot and killed a deaf man standing on his front porch and ...

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 and purchase of up to one ounce of marijuana, and it also permits individuals to grow up to six plants for personal use. What many people do not know is that Prop 64 also permits individuals who have been convicted of possession crimes subsequently eliminated by Prop 64 to petition a court to expunge those convictions.

In San Francisco, individuals who are eligible for expungement do not have to take it upon themselves to navigate the process of getting their conviction reduced, dismissed, or expunged. District Attorney Gascón has ordered his office to retroactively apply the expungement provision to prior convictions going back to 1975. According to Gascón, about 5,000 felony convictions will be reviewed, recalled, and resentenced. Additionally, over 3,000 misdemeanor convictions will be dismissed and sealed. Importantly, the expungements will eliminate a significant barrier to employment and housing for thousands of affected individuals.

Although reduction, dismissal ...

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 the residence. She was kneeling next to her purse and placed in handcuffs. She was not named in the warrant, and she was unknown to the police.

An officer searched her purse and found a zippered pouch that contained baggies full of marijuana. She was charged with possession. She filed a pretrial motion to suppress the evidence obtained during the search of her purse. She argued that the search was in violation of both the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Iowa Constitution.

The district court denied her motion to suppress. A jury found her guilty of possessing marijuana. She appealed, arguing that the district court erred in denying her motion to suppress. The Iowa Supreme Court reversed.

The issue before the Court was “the rights of third parties when law enforcement obtains a premises search warrant which makes no mention of ...

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, 2014, Peters and three other individuals began drinking copious amounts of alcohol. Two of them, Julia and Kajia, were minors. With John Willette at the wheel, the group headed onto the highway. As they were traveling at a high rate of speed, Peters suddenly leapt from the back seat of the car and turned the steering wheel violently. The car lost control and rolled over. Kajia was seriously injured in the crash, and Julia suffered injuries as well.

Peters was charged with several crimes as a result of the incident. At issue on appeal were four counts, all of which involved an allegation that Peters was “driving” or “operating” the vehicle under G.L. §§ 31-27-1.2 (driving so as to endanger, resulting in serious bodily injury), 31-27-2.6 (driving under the influence, resulting in serious bodily injury), and 31-11-18 (driving with a revoked license).

At trial, Peters moved to ...

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, she petitioned SORB for reclassification and relief from the obligation to register. SORB determined that she presents “no cognizable risk to reoffend and no cognizable degree of dangerousness.” However, SORB concluded that because she had been convicted of a sexually violent offense, as a matter of law, she cannot be relieved of her obligation to register.

In April 2014, she appealed to the Superior Court and obtained a preliminary injunction ordering SORB to remove her from the registry and enjoining SORB from requiring her to register. The following year, a Superior Court judge accepted SORB’s findings regarding her lack of dangerousness and granted permanent relief.

Koe subsequently filed a petition with the commissioner of probation to seal her criminal record pursuant to G.L.C. 276, § 100A. The statute prohibits sealing the record of any sex offender who at any time has been classified as a level two ...

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 degree murder after he allegedly sought revenge for his brother’s stabbing by shooting his brother’s attacker. During Solorio’s trial, several of the jurors questioned why Solorio would not testify on his own behalf. Some jurors reportedly stated he would not testify because he was guilty.

Although the trial judge and the jury foreperson admonished the jurors not to discuss Solorio’s decision to invoke his Fifth Amendment right to not testify, the subject was discussed repeatedly among some jurors. A declaration by the foreperson stated, “Some jurors thought that the defendant Solorio felt guilty and he knew he ‘did it’ and that is why he did not testify.”

The trial court held a hearing on the jury misconduct and concluded, “Was there misconduct in this case? Yes, it’s obvious.” However, the court found that Solorio was not prejudiced by the misconduct because every time the topic of him not ...

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 that the Court concluded was “both procedurally and substantively unreasonable.”

The defendant in this case, Latchman Singh, pled guilty, without a plea agreement, to one count of illegally reentering the United States after having been removed following a conviction for a prior aggravated felony. His Guidelines sentencing range (“GSR”) was 15 to 21 months in prison, and both the Government and the Probation Office recommended a within-Guidelines sentence. The district court, however, sentenced Singh to a term of imprisonment of 60 months—nearly three times the top of the Guidelines range.

Singh appealed that sentence, contending that it was both procedurally and substantively unreasonable. The Second Circuit agreed; and it vacated the sentence and remanded for a new sentencing.

Singh was born in Guyana in 1971, and has never been a citizen of the United States. He was one of five children, and he and his family moved to the ...

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 an extremely positive development for previous offenders who encounter roadblocks to obtaining meaningful post-conviction employment.

It comes as a welcome development for Yirtuamlak Fentaw, who is eligible to have his convictions modified under Proposition 64. As he tells it, “All I can get is warehouse work … minimum wage jobs. There’s only so much $375 a week can do.”

The number of people who could potentially benefit is huge. Eunisses Hernandez, policy coordinator with the Los Angeles office of the Drug Policy Alliance (“DPA”) said, “We know within the last ten years there have been at least 500,000 marijuana arrests in the state of California, even when we had legal medical marijuana. Going back ten more years, we’re sure the numbers are even double that.”

However, some observers have been disappointed with the number of petitions filed in the first few weeks. “Marijuana cases are trickling in ...

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 rates, and the official clearance rate has held steady for three decades, despite strong declines in the rate murders are being committed.

According to FBI statistics, Flint, Michigan has the worst murder clearance rate at 17.5%. It is followed by Honolulu, Hawaii (18.8%), Midland, Michigan (23.1%), Saginaw, Michigan (23.3%), and Lima, Ohio (24.5%).

Although a lack of trust between police and poor minority communities—especially in the wake of multiple video recordings of police shooting unarmed Black citizens—is often used as an explanation for plummeting murder clearance rates in those communities, some affluent areas also have low clearance rates. For instance, Palm Beach, Florida and Long Island, New York clear only about one-third of their murder cases. That is comparable to the dismal clearance rates reported by Chicago and New Orleans, where gang-related murders push up the murder rate while depressing the clearance rate.

According to ...

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 government-funded prosecutors in courtrooms overseen by government-paid judges. But there is a crucial check standing between the accused and the full might of the government: the jury.

Traditionally, jurors make credibility determinations and weigh evidence on the way to reaching a verdict. A jury has an age-old right, however, to acquit a defendant regardless of evidence of guilt—jury nullification. This occurs when a jury reaches a “not guilty” verdict despite its belief in the defendant’s guilt. In effect, the jury nullifies a law it believes unfair or unjust.

People who have never heard of jury nullification typically wonder whether juries really have such power. The answer is yes; juries have the power to nullify. Once a jury reaches a “not guilty” verdict, it cannot be questioned by any court, and the double jeopardy clause of the U.S. Constitution bars retrial on the same charge. Whether juries have the right ...

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 27, 2017 ruling was an unusual occurrence in the realm of federal habeas corpus litigation. It is extremely rare for any defendant to be granted habeas relief, and this is doubly so for a defendant who faced the death penalty at trial.

James Freeman was charged in Illinois state court with the kidnapping and murder of Robert Green. Following arraignment, the court appointed public defender Kevin Foster as his lawyer. Shortly after the State announced that it intended to seek the death penalty, Freeman orally requested to proceed pro se. The trial court granted Freeman’s request, and Foster withdrew. During pretrial proceedings, Freeman permitted the public defender to briefly represent him in order to avoid transfer to a jail far from the court. After successfully avoiding the transfer, Freeman filed a formal motion titled “Motion to Proceed Pro Se and for Standby Counsel.”

The trial court held a hearing ...

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 were arrested in separate cases, the State failed to bring them to a preliminary hearing to establish probable cause for their detention within the two days required by law. That same law also requires their release if the State cannot give “compelling” reasons for keeping them in jail beyond two days without a hearing.

Moana and Curioso moved for their release after the two-day period expired; instead of hearing their motions, the trial courts gave the State more time to show probable cause. Regardless, the pair continued to push for their release, filing writs of mandamus with the Hawaii Supreme Court, asking it to order their release. When the Court ordered the State to respond as to why it was holding the men without probable cause, the State filed indictments against them. That negated the need for a preliminary hearing and rendered the matter before the Supreme Court moot.

Normally ...

$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 phone store, the store owner was shot and killed. Johntay Gibson was arrested and taken into custody. After being read Miranda warnings, he was interrogated for seven hours before he asked for a lawyer. Upon the request, the interrogation stopped. After about five hours, the interrogating officer returned and resumed questioning. No new Miranda warnings were issued. Gibson was charged and went to trial.

 His lawyer filed a pre-trial motion to suppress Gibson’s seven-hour interrogation. A hearing was held on the motion. The five-hour gap and lack of new Miranda warnings were not mentioned in either the written motion or during the hearing. However, at trial, defense counsel objected to the last portion of the custodial interview. In support of the objection, counsel argued that it should be suppressed “because of the failure to re-warn him.” The court denied the motion. Gibson was convicted and sentenced to life in ...

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 of Justin Barrett Blakeney for the murder of two-year-old Victoria Viner (“V.V.”). Blakeney was dating V.V.’s mother, Linda Viner, at the time of V.V.’s death. Blakeney was watching V.V. while Viner was at work.

On August 10, 2010, Blakeney called 911 to report that V.V. had collapsed and was non-responsive. V.V. was diagnosed with a diffuse injury throughout her brain, from which she never recovered. She was taken off life support and pronounced dead on August 12, 2010. Her death was ruled a homicide due to blunt force trauma.

Blakeney was accused of beating V.V. to death and was charged with her murder. With the help of jailhouse informant Gregory “Hobo” Hancock, the prosecution developed the theory that Blakeney murdered V.V. in order to gain admission to the Aryan Brotherhood, a notorious white supremacist gang. The prosecution also used ...

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 Appeals for the Fifth Circuit ruled on October 31, 2017.

Darrin Soza was found guilty of possessing an AK-47 with an obliterated serial number. At sentencing, the government argued that Soza was a “prohibited person” under U.S.S.G. § 2K2.1(a)(4)(B), which applies a base offense level of 20. Under the sentencing guidelines, there are two relevant definitions of prohibited person: (1) a person who has been convicted in any court of a crime punishable by imprisonment and (2) as per 18 U.S.C. § 922(g), a person “who is a fugitive from justice.”  

The government argued that Soza was a fugitive from justice because he had an outstanding warrant for a violation of his probation from a prior driving while intoxicated conviction. The government attached a copy of the arrest warrant to the presentence report as evidence, which Soza contested was ...

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 evidence cleared them. The newly discovered DNA belongs to Eric Dixon, a convicted felon who had been released from imprisonment for a similar crime three months before the murder. Dixon matched witnesses’ description of the person seen inside the store about the time of the murder.

“With such compelling DNA evidence demonstrating Mr. Kelley and Mr. Lee’s innocence and pointing to the true assailant, most prosecutors would have moved to overturn these convictions long ago,” said Vanessa Potkin, Post-Conviction Litigation Director at the Innocence Project, which is affiliated with Cardozo School of Law. “We are grateful for the court’s decision, which came after a year of hearing new evidence and argument and careful deliberation.”

Tito Merino was stabbed to death during a 1993 robbery of a video store where he worked. A green and purple plaid baseball cap was recovered near Merino’s body. It did not belong to ...

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 to as the largest mass exoneration in county history. Even for Chicago, which is no stranger to official corruption and abuse scandals, it was extraordinary.

It is no coincidence that Chicago and Cook County payouts to wrongfully convicted individuals skyrocketed in 2017. In December 2017, Chicago paid out almost $31 million to four wrongfully convicted men and millions more throughout the year, but the human costs is even greater for the hundreds, if not thousands, of innocent individuals and their families victimized by a dysfunctional justice system.

Additionally, the public pays twice for police misconduct—once to the innocent victims wrongfully charged and incarcerated, and again because the real offender remaining free to victimize others.

Numerous studies have shown that innocent people confess to crimes for a variety of reasons. A report by the Police Accountability Task Force, which examined arrests in Chicago in 2014 and 2015, identified one primary reason ...

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.

An increasing number of defense counsel are utilizing sentencing mitigation videos to present their clients in a more sympathetic light in the hopes of receiving a lower sentence or a more favorable outcome in a civil action. Personal injury attorneys have long used such videos in an attempt to win plaintiffs big damage awards.

The New York Times describes sentencing mitigation videos as “empathetic biographical mini-documentaries.” They are made for an audience of one—the sentencing judge. Like with most things having to do with the criminal justice system, they don’t come cheap. On average, they cost $5,000 to $25,000 to make.

There are no firm rules either permitting or denying the right to use such videos, and that leaves it up to the judge to decide if one will be permitted. One of the pioneers in this developing area is Doug Passon, president and creative director of ...

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 and family friends (collectively, “Plaintiffs”) contacted Ira Judelson, a licensed bail bond agent, to post a bail bond for Bogoraz’s release. Plaintiffs entered into an indemnity agreement with Judelson, whereby he agreed to underwrite a bail bond to secure Bogoraz’s release in exchange for a $120,560 premium.

After the Plaintiffs paid the premium, Judelson posted the bail bond with the court. The court subsequently ordered a bail-sufficiency hearing under CPL § 520.30 to approve or disapprove the bail. The court denied the bail bond, so Bogoraz was never released. The Plaintiffs requested the return of the premium paid to Judelson, but he refused.

The Plaintiffs sued Judelson in federal court, asserting diversity jurisdiction. The district court determined that the indemnity agreement allowed Judelson to keep the premium. On appeal, the U.S. Court of Appeals for the Second Circuit concluded that under New York law it is an ...

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 Court of one count of conspiracy in violation of 18 U.S.C. § 1962, a provision of the Racketeering Influenced Corrupt Organization (“RICO”) Act. To convict Latorre of violating RICO, the government had to prove he committed “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical,” and that those activities “affected interstate commerce.”

During oral jury instructions, the district court advised the jury that activity relating to firearms also constitutes racketeering activity. The court twice incorrectly told the jury that “firearms” constitute “racketeering activity” during the course of describing “a pattern of racketeering activity.” The court’s second mention of firearms was emphatic: “But you know from the summary I have given you up to now that the types of racketeering activity are the ones I just mentioned a minute ago ...

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 the charges. After entering the plea demanded by the prosecution out of expediency, he left prison a factually innocent man with a murder conviction on his record.

That changed in November 2017. The Nevada Board of Pardons commissioners granted Steese a full pardon, freeing him from the stain of a felony murder conviction.

 Steese was convicted of the 1992 murder of Gerald Soules, Steese’s former lover and a trapeze artist who performed at Circus Circus on the Las Vegas Strip. At trial, prosecutors presented Steese’s confession to the crime, which attorney Lisa Rasmussen says was coerced and beaten out of him after he had driven three days without sleep to talk to investigators. In his defense, Steese presented numerous witnesses to establish his alibi—he was in Idaho at the time of the murder. Prosecutors argued that the person in Idaho at the time in question was Steese’s estranged brother, not ...

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 the process by which this Court renders these decisions and the import of our decisions, both among repeat litigants in state habeas proceedings and among federal courts that sometimes see the same cases … brought under 28 U.S.C. § 2254.” The Court noted that the answer to specific issues in some federal habeas cases depends in part on presumptions about the Court’s summary denials of habeas applications. The Court admonished that “those presumptions should be founded on reality rather than supposition, inference, or misinformation. We therefore take this opportunity to explain.”

A habeas petitioner seeking to appeal a final superior court order denying his petition must file a timely application in the Georgia Supreme Court for a certificate of probable cause and a timely notice of appeal in the habeas court. In every case, a central staff lawyer under the guidance of a justice reviews the ...

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 Review Committee, which was created by the Texas Legislature in 2015, issued its final report. The report called the use of inexpensive drug field tests “a significant concern” due to their “questionable reliability.” In Houston alone, the crime lab discovered over 300 drug convictions based on a positive field test of a substance that turned out not to be a drug at all. Former Houston Police Chief Charles McClelland told the Houston Chronicle, “I don’t think any law enforcement agency in America should be doing this anymore.”

The known unreliability of the tests prompted Portland, Oregon to require lab confirmation before guilty pleas can be entered. Despite the widespread knowledge that the tests are unreliable and many factually innocent people have been convicted based upon them, many jurisdictions continue to permit prosecutors to use the tests to obtain guilty pleas even without confirmation by lab testing.

The drug ...

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 individual who had an outstanding arrest warrant. By time the officers had returned to the area, Cohagan was inside a grocery store.

Otto entered the store and asked Cohagan for identification. He confirmed that Cohagan was not the individual they were seeking. Before leaving the store parking area, the officers were told to retrieve store video from an unrelated incident. Curtis then approached Cohagan and confirmed for himself upon visual inspection that Cohagan was not the person with the outstanding warrant.

Nevertheless, Curtis still asked Cohagan for his identification to run a warrant check. Cohagan asked if he could continue shopping while Curtis ran the warrant check; Curtis said that was fine. But when dispatch advised that Cohagan may have a warrant, Curtis put his hand on Cohagan’s shoulder and led him to the front of the store.

 Dispatch advised that Cohagan had outstanding warrants. He was placed under arrest ...

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 of Appeal of California, Fifth Appellate District, held. A wobbler is an offense that may be punished as either a felony or a misdemeanor for sentencing purposes, at the discretion of the trial court.

Pao Lee was convicted by a jury for unlawfully driving or taking a vehicle, receiving a stolen vehicle, and carrying two knives when he was caught by police driving that stolen vehicle. Lee had been down this road before; he admitted to having two prior vehicle theft convictions, which brought a section 666.5(a) allegation authorizing a higher sentence for the current convictions.

At sentencing, the State told the judge that the section 666.5(a) enhancement deprived it of discretion to reduce Lee’s wobblers to misdemeanors, because section 666.5(a) “converted” them to felonies. The judge believed the State and said, “this court must” consider the wobblers as felonies because Lee’s admitted prior ...

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 18, 2015, Leroy Wallace III was pulled over for a traffic violation. He was arrested on the scene as a suspect in an unrelated domestic violence incident. Officer Michael Ambrose then went to Wallace’s vehicle and discovered a wooden baton wedged between the center console and the driver’s seat. Wallace was subsequently charged with violation of § 22210, which prohibits possession of “any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot.”

Wallace moved to suppress evidence of the baton. At the suppression hearing, Officer Ambrose testified that after Wallace was placed under arrest he went to Wallace’s vehicle to conduct an inventory search in order to safeguard Wallace’s possessions because Wallace claimed that it was his belief that the vehicle was going to be towed and impounded. Ambrose conceded he stopped taking inventory (searching) Wallace’s vehicle after finding the baton ...

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 trial, hoping for a fair trial. Instead, he watched as the lawyers lulled at least two jurors to sleep. When the jury returned a guilty verdict, Villalobos appealed, raising the issue that jurors were asleep. The Appeals Court rejected his claim, and Villalobos took his case to the Massachusetts Supreme Court.

The Supreme Court determined that the prosecutor’s report to the trial judge that the jurors were sleeping should have prompted the judge to intervene. The judge, though, “simply observed” the jurors the rest of the trial to make sure nobody else fell asleep.

If a judge receives information that a juror is sleeping or is otherwise inattentive, and the judge determines that information is “reliable,” the high court explained that he “must take further steps to determine the appropriate intervention.” Typically, the next step is to conduct a voir dire, or interview, of the inattentive or sleeping ...

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.”

Sadly, that “respect” is rarely granted until after a criminal defendant’s first court appearance, which is too late for many defendants who plead guilty simply because they don’t know any better, or languish for months in jail because they cannot afford to post bail.

The Sixth Amendment guarantees criminal defendants the right to counsel. As a result of U.S. Supreme Court decisions in Gideon v. Wainwright, 372 U.S. 335 (1963), and Argersinger v. Hamlin, 407 U.S. 25 (1971), it is well-established that defendants in criminal proceedings who are at-risk of imprisonment if convicted have a constitutional right to legal representation. However, the Supreme Court never definitively determined exactly when that right is triggered prior to trial. As a result, states decide whether or not to provide a lawyer at the first court appearance for those defendants who cannot afford to hire one.

According to a 2009 survey ...

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 and several other criminal offenses. Two months later, the State dismissed the charges without prejudice. On June 23, 2015, Dye filed an application to seal his official records pursuant to R.C. 2953.52(B)(4), which provides for sealing of records after charges have been dismissed. The trial court denied his application because the charged had been dismissed without prejudice and the statute of limitations for the offenses had not yet expired. Dye appealed, and the Fifth District Court of Appeals affirmed the judgment of the trial court. The Fifth District certified that its decision was in conflict with the Eighth District’s decision in State v. C.K., 2013-Ohio-5135. The Ohio Supreme Court agreed to resolve the conflict.

The question before the Supreme Court was whether R.C. 2953.52(B)(4) requires that the applicable statute of limitations must expire before a trial court can grant a person’s ...

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 a trial court and an appellate court said yes. The Georgia Supreme Court, applying the old saw known as common sense, disagreed and reversed.

Randall Lee Jones rented a car in Tennessee. The rental agreement provided for 800 miles over a four-day period. However, Jones proceeded to drive to California and back, putting 5,109 miles on the vehicle and then failed to return it on time.

The rental agency reported the car stolen, and Jones was pulled over while driving through Georgia. He was arrested and charged with theft by conversion (OCGA § 16-8-4(a)) and theft by bringing stolen property into Georgia (OCGA § 16-8-9). The jury found Jones guilty on both counts, and the trial court sentenced him to concurrent five-year terms to serve two and $1,472 in restitution.

Jones appealed, arguing that the two convictions were mutually exclusive. The appellate court upheld the convictions, but ...

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 advertisements, which netted 110 responses. When the men, many of whom were local tech workers, showed up at the condo where the sex was to take place, they were arrested by police posing as sex workers.

There was one problem, however, with many of the arrests. According to Bellevue Police Chief Steve Mylett, cameras recording several of the arrests also inadvertently captured audio. Washington state law requires two-party consent in order to legally record the audio of conversations, so the accidental recording of audio necessitated dismissal of 61 cases.

According to Mylett, “Nobody was wired for sound and there were no microphones,” he said. “We can’t use audio and everybody knew it. There was no way in the world that any of the officers were going to jeopardize this operation.” He believes that a technical glitch is the likely reason for the illegal audio recordings.

Regardless of the ...

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 the defendant’s murder conviction and a new trial.

Encarnacion Salas fatally stabbed his friend Jesus Lopez on October 24, 2014. Lopez had 15 knife wounds on his body. Salas claimed that it was self-defense. He told investigators that after drinking for a while, Lopez attempted to grab his genital area, and when Salas rebuffed his advance, Lopez attacked him with a knife. Salas managed to pry the knife from Lopez. He kept attacking, so Salas had to use the knife to defend himself.

The prosecutor rejected Salas’ claim of self-defense and charged him with murder. According to its theory, Salas attacked and killed Lopez “because he was conflicted about his sexuality.” He went to trial in October 2015.

During its closing argument, the prosecution showed the jury a 22-slide PowerPoint presentation that had not been seen by either the court or defense prior to being shown to the jury ...

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 a lawyer.

New Orleans Chief Defender Derwyn Bunton’s decision to refuse new clients made national news, and the Louisiana legislature took action. In June 2016, Gov. John Bel Edwards signed into law a bill requiring the state’s indigent defense agency to spend more on local public defenders. A $5 million infusion propped up local indigent defender offices statewide.

But $3 million of that came from the fund used for the defense of those facing the death penalty. “They robbed Peter to pay Paul,” said Jay Dixon, chief defender for the Louisiana Public Defender Board. “We’re still in crisis; it’s just a different crisis. And now they can’t shift any more money around, so we could be facing an even greater crisis next year.”

A Marshall Project report issued on November 28, 2017 indicates that of the 11 indigent defendants facing a death sentence without a lawyer, five have ...

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 (“CCA”) held.

Abraham Proenza was charged with injury to a child after a baby in his care became sick and died after he failed to seek medical help based on what he says was a genuine misunderstanding that he could not seek medical help for the baby. During trial, a witness who was testifying about the misunderstanding was questioned by the judge. When the witness verified that the clinic would not have seen the sick baby had he brought him in because Proenza was not a parent or guardian, the judge seemed incredulous. The judge began asking why in front of the jury, saying that his own doctor did not have such rules. Proenza did not object to the judge’s questioning.

The jury convicted Proenza, and the judge sentenced him to 40 years in prison. He appealed to the Thirteenth Court of Appeals, arguing that the judge commented on the ...

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 to the smell of illegal drugs or a response to unconscious cues from a handler?

As noted in an article on, dogs like to please their handlers. They are also highly sensitive to behavior that leads to reward. While there is no denying the power of a dog’s sniff, there is a worrisome shortage of data on what, exactly, a drug dog is doing when it alerts.

According to the article, “there’s a deliberate dearth of data when it comes to drug-sniffing dog fallibility. Tracking this data would undercut the dogs’ raison d’etre: to act as probable cause for warrantless searches.” Of course, the lack of hard data “makes challenging drug dog ‘alerts’ in court almost impossible.”

One study, reported more than seven years ago by NPR, showed that drug dogs tend to respond to handler cues more than to actual drugs. Researcher Lisa ...

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 on these new methods, they are running into a brick wall: The companies that create these tests and the forensic labs that use them refuse to turn over the source code for defense analysis.

In California, the Electronic Frontier Foundation (“EFF”) recently filed an amicus brief arguing that courts should require the government to turn over the source code of any software used for DNA analysis. In the case at issue, the government used a DNA matching software program called TrueAllele to produce a DNA match. The defendant requested the TrueAllele source code but was denied.

The EFF argued that both due process and the rules of evidence require handing over the code. Without it, the defendant is unable to examine how the software works, and is thus unable to mount a proper challenge to the results. EFF staff attorney Stephanie Lacambra said that a defendant’s right to a fair ...

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 case.

Brown County sheriff’s investigators gave Michelle McDaniel, Blankinship’s mother, a sketch of a man they thought might have been the killer. Within a week, the police had a suspect in custody, who then confessed to murdering Blankinship. But investigators had no witnesses. How did they do it?

DNA sketch technology, known as phenotyping, uses DNA collected from a crime scene to create physical traits of what the person might like, based on certain markers in the DNA. Companies have created a predictive formula for characteristics that match what face-scanning software says those characteristics should be, including the shape of the suspect’s face, skin tone, eye color, and hair color. It is billed as being capable of accurately predicting the physical appearance and ancestry of an unknown suspect.

“My son called me after seeing the sketch and said, ‘Mom, I think I know this kid,’” McDaniel said. The suspected ...

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(5) by driving with a license that had been revoked. Miller argued he could not be convicted under the statute because he never possessed a valid Florida driver’s license. The trial court agreed, and it reduced the charges to driving without a valid license. The Third District Court of Appeal affirmed, but it certified conflict with decisions from the Second, Fourth, and Fifth District Courts of Appeal.

The Florida Supreme Court accepted review of that certified conflict. Siding with the Third and First Districts, the Court determined that the plain language of the statute is not ambiguous. The law “provides that an offender must have had his or her driver license revoked as a habitual traffic offender in order for the felony penalty to apply,” the Court’s majority wrote. “The State cannot revoke a license that never existed.” Therefore, the Court concluded “a person cannot violate section 322 ...

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 Martha Puebla murder in retaliation for her testimony in court about the murders. Catalan had been at a Dodgers’ game, and it took his tickets, blurry Dodgers stadium video footage, cell phone records, and the filming of an episode of Curb Your Enthusiasm at Dodger stadium in his section to prove his innocence. Catalan was dismissed of his charges, released, and granted a settlement.

Colorado: On September 27, 2017 William Ray resigned from his position as a Canon City police commander. An investigation began based on an incident that occurred on August 26, 2017. After the investigation turned to the Colorado Bureau of Investigations, Ray was placed on unpaid administrative leave on September 6, 2017. Ultimately, he was charged with three counts of official misconduct.

Colorado: About 1,000 of the Denver Police Department’s crime reports are in question. An investigation of the source of the flaws in these reports ...

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 suspended, plus eight years on probation. Kibbe had served his four years in prison when he was arrested in 2017 for violating probation in August and September 2016.

At the revocation hearing, the probation officer (“PO”) admitted Kibbe was released from prison on December 16, 2007, and that Kibbe’s probation would have therefore expired December 2015. The State, though, argued that Kibbe’s prior revocations, which would have tolled his eight years of probation, added another 19 months to the term, meaning he was still on probation in 2016 at the time of the violations. But at the revocation hearing, the State conceded it did not have any documentation to support this at the time, nor could the PO testify with any degree of certainty that Kibbe was on probation at the time of the alleged violations in 2016.

Nevertheless, believing the prosecutor, the court sentenced Kibbe to another four years ...


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