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Prisoner Education Guide

Criminal Legal News: April, 2018

Issue PDF
Volume 1, Number 5

In this issue:

  1. Indigent Defense in America: An Affront to Justice (p 1)
  2. Fight Mass Incarceration? There’s an App for That (p 10)
  3. $ Millions to Settle Philly Police Misconduct Cases (p 11)
  4. Texas: Retroactive Application of Law That Decriminalized Specific Conduct Not Violation of Separation of Powers (p 12)
  5. Data: High Rate of Sexual Abuse by Cops (p 12)
  6. Sheriff Wanted Medical Examiner to Alter Reports (p 14)
  7. Witness Misidentification: Ohio Man’s 14 Convictions Vacated (p 14)
  8. Georgia Attempts to Limit Access to Official State Law (p 15)
  9. Officer-Involved Shooting Data? Hard to Find! (p 16)
  10. Defendant’s Right to Testify Violated: Hawaii Supreme Vacates Conviction (p 16)
  11. Law Enforcement Scrambles to Hide Stingray Use (p 18)
  12. Miranda Violation: 9th Circuit Reverses Murder Conviction (p 18)
  13. Mass. Disciplines Prosecutors: No More Business as Usual (p 19)
  14. Kansas Supremes: No Lifetime Post-Release Supervision (p 20)
  15. Pennsylvania Supremes: Modified “Vertical” Approach to Collective Knowledge Doctrine (p 20)
  16. Defense Fails to Present Diminished Capacity, Ninth Circuit Vacates Murder Convictions (p 22)
  17. $4.8 Million Settles Kansas City Police Shooting (p 23)
  18. Video: A Two-Edged Sword (p 24)
  19. Not Disclosed: NSA-Obtained Evidence (p 26)
  20. California Supreme: “Beyond a Reasonable Doubt” Standard for Second Strike (p 27)
  21. Pennsylvania Supreme Court: Police Emergency Lights Next to Parked Car Constitute Seizure (p 28)
  22. 7 Years Pre-Trial Incarceration: Vacated Convictions (p 29)
  23. $275,000 to Man Arrested for Recording Police (p 29)
  24. Lack of Criminal Intent: Missouri Supreme Acquits on Drug Possession Charge (p 30)
  25. Illinois Supremes: Barring Firearms Within 1,000 Feet of Parks Facially Unconstitutional (p 30)
  26. Washington Supremes: Former Prisoner Can Take Bar (p 31)
  27. Cops Killed 100 Times More Americans Than Terrorists Did in 2017 (p 32)
  28. U.S. Supreme Court: Guilty Plea No Bar to Defendant Challenging Constitutionality (p 32)
  29. Fired New Orleans Cops Just Move to Other Departments (p 33)
  30. $900,000 to Octogenarian Tased by Police (p 33)
  31. Gang Enhancement: California Court Reverses Denial of Motion for New Trial (p 34)
  32. Mass. Supremes: Consent to Search in Vehicle Did Not Extend to Engine (p 34)
  33. New York Court of Appeals: Defendant Denied Right to Speedy Trial After 6-Year Delay (p 36)
  34. Texas Supremes: Possession of Gun Does Not Constitute “Use” Under Forfeiture Statute (p 36)
  35. Philly Decriminalizes Possession of Small Amounts of Marijuana (p 37)
  36. Magistrate Judge: Change Rule of Evidence That Allows Prior Conviction to Impeach Witness (p 37)
  37. Even Prosecutors Can’t Get Secret List of L.A. Cops With Credibility Problems (p 38)
  38. Sixth Circuit: Sentence Enhancement Inapplicable, Sales of Guns and Drugs Separate (p 38)
  39. Don't Take a Genetic Test Without Reading This First (p 39)
  40. “Get Out of Jail” Free Cards for Cops’ Family, Friends Cut (p 39)
  41. California Court of Appeal Holds State Must Prove Stolen Car’s Value for Felony Theft of Vehicle Conviction (p 40)
  42. Fourth Circuit: No Qualified Immunity for Deputies in Shooting of Armed Suspect (p 40)
  43. West Virginia Supremes: Previous Nonviolent Crimes, Life Sentence Unconstitutional (p 41)
  44. News in Brief (p 42)
  45. Mississippi Supreme Court Caps Attorney’s Fees in Wrongful Conviction Cases at 25% (p 42)

Indigent Defense in America: An Affront to Justice

by Christopher Zoukis

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall have the right ... to have the Assistance of Counsel for his defense.” What exactly the “right” to counsel in a criminal matter means has been the subject ...

Fight Mass Incarceration? There’s an App for That

by Derek Gilna

In the eyes of many, the American justice system is in need of reform on several levels, especially in the area of bail. Pretrial detainees account for 70% of the incarcerated, and many are behind bars simply because they lack money for bail. The number of pretrial ...

$ Millions to Settle Philly Police Misconduct Cases

by Derek Gilna

Philadelphia is the latest big city in the spotlight after a series of big-money settlements to resolve dozens of police misconduct cases. According to court records, more than 300 lawsuits against narcotics officers with the Philadelphia Police Department have either settled or are in settlement negotiations, and ...

Texas: Retroactive Application of Law That Decriminalized Specific Conduct Not Violation of Separation of Powers

by Dale Chappell

The Court of Criminal Appeals of Texas (“CCA”) held that the state legislature does not violate the Separation of Powers Clause of the Texas Constitution when it exercises its power to repeal criminal laws, and the legislature was within its authority to apply the change to individuals ...

Data: High Rate of Sexual Abuse by Cops

by Christopher Zoukis

Police officers in America hold powerful positions. These heavily armed men and women make daily decisions that greatly affect the citizens with whom they interact. Unfortunately, some cops misuse the power granted to them by abusing the individuals they are tasked to protect and serve.

When such ...

Sheriff Wanted Medical Examiner to Alter Reports

by Dale Chappell

A pair of San Joaquin County forensic pathologists recently quit, citing abusive treatment working under Sheriff Steve Moore. They say Moore tried to influence their decisions in cases, especially on deaths that occurred at the hands of law enforcement.

“I realized that I had to leave to ...

Witness Misidentification: Ohio Man’s 14 Convictions Vacated

by Mark Wilson

An Ohio man who was convicted of a violent home invasion robbery on the basis of faulty eyewitness identifications was exonerated just minutes before being sentenced to a lengthy prison term.

On February 5, 2017, a man armed with a handgun confronted a 32-year-old woman in the ...

Georgia Attempts to Limit Access to Official State Law

by Derek Gilna

The State of Georgia has sued to block publication on the internet of its Official Code of Georgia Annotated (“OCGA”) by a nonprofit organization called Public Resource. The group wants to publish the OCGA on the internet in order to make the state’s official laws freely available ...

Officer-Involved Shooting Data? Hard to Find!

by Christopher Zoukis

How often do police officers shoot Americans? How many people do they kill? What color were victims of police shootings? Were they armed?

It would seem reasonable that an informed citizenry that employs an enormous paramilitary police force nationwide would know the answers to these questions—or, at ...

Defendant’s Right to Testify Violated: Hawaii Supreme Vacates Conviction

by Norma Gonzalez

The Supreme Court of Hawaii vacated the defendant’s conviction for operating a vehicle under the influence of an intoxicant because the defendant’s waiver of the right to testify was not voluntarily, intelligently, and knowingly made.

On February 1, 2016, Eduwensuyi was charged in the Honolulu District Court with operating ...

Law Enforcement Scrambles to Hide Stingray Use

by Derek Gilna

Privacy experts have warned against the use of Stingray technology since its existence was first revealed. This device permits the user to locate individuals by tracking the signals emitted by their cell phones.

Dozens of large law enforcement agencies in cities like New York, Los Angeles, Chicago ...

Miranda Violation: 9th Circuit Reverses Murder Conviction

by Christopher Zoukis

The Ninth Circuit Court of Appeals reversed the murder conviction of a 14-year-old boy who confessed to the crime after invoking his right to counsel. The Court concluded that the boy’s Miranda rights were violated.

The September 29, 2017 opinion reexamined the conviction of Jessie Rodriguez for ...

Mass. Disciplines Prosecutors: No More Business as Usual

by Derek Gilna

Prosecutorial misconduct is considered a cancer by many criminal justice experts, eating away at the credibility, moral authority, and public support for the criminal justice system. However, the recent actions of the Massachusetts Board of Bar Overseers in sanctioning Cape and Islands Assistant District Attorney Laura Marshard ...

Kansas Supremes: No Lifetime Post-Release Supervision

by Derek Gilna

The Kansas Supreme Court vacated sentences in which the district court had imposed lifetime post-release supervision on a defendant convicted of attempted first-degree murder, first-degree murder, aggravated assault, and illegal use of a communication facility. The Court held that the lifetime post-release supervision requirement for all four ...

Pennsylvania Supremes: Modified “Vertical” Approach to Collective Knowledge Doctrine

by Richard Resch

In January 2018, the Pennsylvania Supreme Court refined the contours of the collective knowledge doctrine as it exists in the Commonwealth. The doctrine relates to the warrantless seizure of a person by an officer acting as part of a group in a coordinated investigation. The Court adopted ...

Defense Fails to Present Diminished Capacity, Ninth Circuit Vacates Murder Convictions

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit granted a California state prisoner’s petition for a writ of habeas corpus and vacated the prisoner’s convictions for first degree murder. The Court, in a 2-1 panel decision, found that the trial attorney failed to provide effective ...

$4.8 Million Settles Kansas City Police Shooting

by Matt Clarke

In September 2017, the terms of a $4.8 million confidential settlement between the Kansas City Police Department and an unarmed man whom police officers shot 20 times were made public. The man had sued police for using excessive force in responding to the report of an ...

Video: A Two-Edged Sword

by Michael Avery

A great deal has changed since I started bringing civil rights suits against the police almost 50 years ago. Some things are for the better, others for the worse. Unfortunately, there’s also much that hasn’t changed. The cops are still beating people up, making false arrests, lying ...

Not Disclosed: NSA-Obtained Evidence

by Derek Gilna

The Intercept has revealed that Foreign Intelligence Surveillance Act (“FISA”) evidence is frequently being used to convict people in federal court without disclosing to defendants that such evidence is being relied upon, as required by federal law. “The FBI frequently searches Section 702 databases when it opens ...

California Supreme: “Beyond a Reasonable Doubt” Standard for Second Strike

by Edward B. Lyon

California is well known for its harsh Three Strikes law, which enhances prison terms for certain repeat offenders. Under that law, defendants whose first felony was “serious or violent” are classified as a “second strike defendant.” Their punishment range isdoubled. Defendants with two or more ...

Pennsylvania Supreme Court: Police Emergency Lights Next to Parked Car Constitute Seizure

by Dale Chappell

When a Pennsylvania state trooper turned on his emergency lights and pulled next to a car parked on the side of the road, it was an “investigative detention” for which he did not have “reasonable suspicion.” In an issue of first impression before the Pennsylvania Supreme ...

7 Years Pre-Trial Incarceration: Vacated Convictions

This decision is a rare example of a criminal defendant actually getting permanent relief based on a violation of his speedy trial rights.

Joseph Tigano, III and his father, Joseph Tigano, Sr., were arrested on July 8, 2008 on charges related to a marijuana growing enterprise allegedly operated by the ...

$275,000 to Man Arrested for Recording Police

A federal lawsuit brought for the unlawful arrest of a man who filmed a police raid of his house has been settled for $275,000.

Alfredo Valentin was arrested by Manchester, New Hampshire police after he lawfully recorded the raid of his home in 2015. He was charged with violating ...

Lack of Criminal Intent: Missouri Supreme Acquits on Drug Possession Charge

by Suzanne Bring

The Missouri Supreme Court held that there was insufficient evidence to convict the defendant of possession of meth because her mere presence at a residence in which meth was discovered, without more, does not constitute actual or constructive knowledge of its presence.

In October 2014, the St ...

Illinois Supremes: Barring Firearms Within 1,000 Feet of Parks Facially Unconstitutional

by Richard Resch

In April 2013, Julio Chairez pleaded guilty in connection with a plea agreement to possessing a firearm within 1,000 feet of a park in violation of Section 24-1(a)(4), (c)(1.5) of the Unlawful Use of a Weapon (“UUW”) statute (720 ILCS 5/24-1 ...

Washington Supremes: Former Prisoner Can Take Bar

by Derek Gilna

Tara Simmons overcame the burden of two previous jail sentences, 20 months in prison, a bankruptcy, and a drug addiction to graduate from law school, magna cum laude. She has clearly turned her life around. However, earning a law degree is only the first step to actually ...

Cops Killed 100 Times More Americans Than Terrorists Did in 2017

by Christopher Zoukis

More than 1,000 Americans were killed in 2017 by a particularly violent class of fellow citizens. Some of those killed by these highly trained gunmen were children, and many of them were unarmed. Are these shooters terrorists? Heavily armed gang members? No. They’re the police.

According ...

U.S. Supreme Court: Guilty Plea No Bar to Defendant Challenging Constitutionality

by Richard Resch

The U.S. Supreme Court held that a guilty plea alone does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal.

In September 2013, Rodney Class was indicted by a federal grand jury for possessing firearms in his ...

Fired New Orleans Cops Just Move to Other Departments

by Dale Chappell

Dozens of New Orleans police officers who have been fired for misconduct were able to keep their badges and guns simply by switching to another police department, according to police personnel files and court documents. The ease with which the fired New Orleans officers found work at ...

$900,000 to Octogenarian Tased by Police

Kingstree, South Carolina will pay a $900,000 settlement in a case in which police officers Tased an elderly man.

Albert Chatfield, 86, was having an undisclosed mental health issue one day in October 2017. Kingstree police responded, and Chatfield led them on a brief chase. According to the police ...

Gang Enhancement: California Court Reverses Denial of Motion for New Trial

by Derek Gilna

The Court of Appeal of California, Second Appellate District, Division One, reversed a trial court’s denial of a defendant’s motion for a new trial on the issue of whether or not a gang enhancement was supported by the evidence.

Defendant Bobby Watts was convicted of murder, and ...

Mass. Supremes: Consent to Search in Vehicle Did Not Extend to Engine

by Richard Resch

The Supreme Judicial Court of Massachusetts held that consent to search inside a vehicle does not authorize the police to search under the hood of the vehicle.

On January 23, 2015, two police officers conducted a traffic stop of a vehicle for loud music. There were two ...

New York Court of Appeals: Defendant Denied Right to Speedy Trial After 6-Year Delay

by Richard Resch

On May 24, 2008, Reginald Wiggins and codefendant Jamal Armstead were involved in an altercation in which a 15-year-old bystander was shot and killed. They were arrested and charged with various crimes, including murder. The prosecution spent two-and-a-half years attempting to get Armstead to testify against Wiggins ...

Texas Supremes: Possession of Gun Does Not Constitute “Use” Under Forfeiture Statute

by Dale Chappell

The Supreme Court of Texas held that a Texas county commissioner’s misdemeanor conviction for possession of a firearm did not constitute “use” of a firearm under the forfeiture statute, and thus forfeiture was not authorized.

Mark Tafel, a former Hamilton County commissioner, was arrested for possession of ...

Philly Decriminalizes Possession of Small Amounts of Marijuana

by Christopher Zoukis

Since 2014, police in Philadelphia, Pennsylvania have had the option of issuing a $25 fine in lieu of arresting a citizen found in possession of a small amount of marijuana. In 90 percent of all such cases, fines were issued. But still some Philadelphians went to jail ...

Magistrate Judge: Change Rule of Evidence That Allows Prior Conviction to Impeach Witness

by Derek Gilna

Judicial proceedings are governed by strict rules, but none is more burdensome to convicted offenders than having their testimony disregarded because of a prior felony conviction. Federal proceedings are governed by the Federal Rules of Evidence. Rule 609(a)(1), enacted in 1975, permits attacking a witness’ ...

Even Prosecutors Can’t Get Secret List of L.A. Cops With Credibility Problems

by Dale Chappell

Los Angeles County Sheriff Jim McDonnell wants to give a secret list of approximately 300 untrustworthy cops to the Los Angeles County District Attorney’s Office, so prosecutors know who not to call as a law enforcement witness in a criminal case. The police union, however, is fighting ...

Sixth Circuit: Sentence Enhancement Inapplicable, Sales of Guns and Drugs Separate

by Dale Chappell

Where the negotiation of each transaction was “fully consummated” before the next, the sale of guns and drugs separately was not enough to apply a guideline enhancement, the Sixth Circuit held December 5, 2017.

Darryl Jackson sold drugs and guns to a confidential informant (“CI”), but not ...

Don't Take a Genetic Test Without Reading This First

The genetic testing company 23and­Me has reported that law enforcement agencies have requested the data of five individuals. The news raises concerns that the data from private companies like 23andMe and Ancestry.com could be turned over to police without the knowledge or consent of the affected individuals.

According to ...

“Get Out of Jail” Free Cards for Cops’ Family, Friends Cut

by Christopher Zoukis

The Patrolmen’s Benevolent Association (“PBA”), New York City’s largest police union, cut the number of “get out of jail free” cards given to officers for their friends and family. In years past, cops were allotted 30 cards each, but that number was recently lowered to 20.

The ...

California Court of Appeal Holds State Must Prove Stolen Car’s Value for Felony Theft of Vehicle Conviction

by Dale Chappell

On January 23, 2018, the Court of Appeal of California, Fifth Appellate District, held that theft of a vehicle worth less than $950 was not a felony but a misdemeanor under Vehicle Code § 10851, which is subject to Proposition 47’s new petty theft provision—Penal Code ...

Fourth Circuit: No Qualified Immunity for Deputies in Shooting of Armed Suspect

by Dale Chappell

An officer does not possess the unfettered authority to shoot a member of the public simply because that person is carrying a weapon,” the U.S. Court of Appeals for the Fourth Circuit said, upholding the district court’s denial of defendant deputies’ request for summary judgment ...

West Virginia Supremes: Previous Nonviolent Crimes, Life Sentence Unconstitutional

by Dale Chappell

The Supreme Court of Appeals of West Virginia held that a life sentence based on two prior driving on a revoked license felonies violated the West Virginia Constitution’s provision that “[p]enalties shall be proportioned to the character and degree of the offence.”

After ...

News in Brief

California: California AttorneyGeneral Xavier Becerra announced on February 20 that he will not appeal a landmark decision on excessive bail. This decision came a month after the First District Court of Appeal ruled on a case involving 64-year-old Kenneth Humphrey, who had bail set at $350,000 for stealing a ...

Mississippi Supreme Court Caps Attorney’s Fees in Wrongful Conviction Cases at 25%

The Mississippi Supreme Court held that the state statute governing attorney’s fees in wrongful conviction and imprisonment cases sets out an escalation of fees tied to each stage of the case with the fee award capped at 25%.

Jason Hall’s conviction was vacated by the Mississippi Supreme Court. He subsequently ...




 

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