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Prisoner Education Guide

Criminal Legal News: April, 2018

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Volume 1, Number 5

In this issue:

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

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 detainees is one of the primary reasons the U.S. has the dubious distinction of the highest incarceration rate in the world.

The American Bar Association notes that the precipitous 30% decline in criminal jury trials from 1962 to 2002 is directly related to the intense pressure on the indigent defendant, who, although supposedly innocent until proven guilty, often pleads guilty to a lesser charge to gain his freedom in order to preserve jobs, home, and family. It’s little wonder that the number of confined individuals has increased by more than 500% during that same time period, which is more than twice as high as the increase in cases filed.

Now, two organizations—National Bail Out (“NBO”) and Appolition—are doing their part to level the criminal justice playing field for the indigent. NBO’s mission is to provide jail funds to the indigent to pay their bail. The organization has ...

$ 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 ...

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 abuse takes the form of sexual assault and harassment, the reaction should be swift and severe. There is no room in an enlightened society for those who would use the badge and gun in order to engage in sexual misconduct. But abusive police officers benefit from unique protections offered by collective bargaining agreements, negotiated by powerful unions.

A recent Associated Press investigation indicates that sexual misconduct is among “the most prevalent type of complaint among law officers.” A 2010 Cato Institute report ranked harassment and abuse prevalent complaints against cops, second only to excessive force. And according to Splinter News, review of victim reports and media inquiries suggests that a police officer is busted for sexual abuse or harassment every five days.

The victims of sexual abuse and harassment at the hands of police are often uniquely vulnerable. A recent report cited by Splinter News found that 70 percent ...

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 whose criminal cases were pending on appeal at the time the change became effective.

In 2015, the legislature passed Senate Bill 746 that amended several provisions of the Civil Commitment of Sexually Violent Predators Act contained within the Health and Safety Code. Specifically, the amendment removed the provision that made it a criminal offense for a sexually violent predator who had been civilly committed to fail to comply with the terms of his sex offender treatment. The bill had a savings clause that applied the change to anyone who had been convicted of the offense of violating the terms of his civil commitment and whose direct appeal was pending at the time the legislation became effective. The provisions of the bill became immediately effective upon Governor Abbott signing it into law.

Roger Vandyke was required to make progress in a course of treatment mandated for those civilly committed as violent ...

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 seek employment in another county in California where the sheriff is not like Sheriff Steve Moore,” wrote Dr. Bennet Omalu in his resignation letter in December. A neuropathologist, Dr. Omalu rose to fame in 2015 when Will Smith portrayed him in the movie “Concussion,” based on the doctor’s research into CTE, the degenerative brain disease suffered by football players with traumatic brain injuries.

“The Sheriff was using his political office as the coroner to protect police officers whenever someone died while in custody or during arrest,” Dr. Omalu wrote to his supervisors about Moore’s interference, which he said had gotten worse the last two years. “The Sheriff does whatever he feels like doing as the coroner,” he claimed.

Just before Dr. Omalu quit, his partner, Dr. Susan Parson, one of only 1,000 board certified pathologists in the country, also quit because of Moore. “Sheriff Moore’s ...

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 driveway of her Cleveland, Ohio home. The assailant and another man demanded money and forced the woman, her 28-year-old boyfriend, and her 9-year-old daughter into the basement. The men pistol-whipped the woman and tied up the three victims before fleeing with the victims’ wide-screen television, three iPhones, iPad, jewelry, and car keys.

The woman told her landlord about the attack and described the man who confronted her in the driveway as missing a tooth. The landlord believed the woman was describing 28-year-old Deontae Wilson, who lived in the neighborhood. The landlord showed the woman a picture of Wilson from his Facebook page. Both the woman and her boyfriend positively identified Wilson as one of the assailants and notified police.

Wilson was arrested and charged with numerous counts, including armed robbery, burglary, assault, aggravated menacing, and illegal use of a weapon. The case proceeded to a three-day bench trial before Common ...

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 to the public.

Although the state has acknowledged that it cannot claim a legally-enforceable copyright in its statutory language or text of published state court opinions, it has advanced the argument that its own publication of the combination of the two legal resources can be copyrighted and made accessible only through a pay wall for a charge of up to $400.

Vera Eidelman, a William J. Brennan fellow of the ACLU Speech, Privacy, and Technology Project, states that, “Knowing the law is a right, not a privilege. We are in court today to argue that a state cannot put a copyright pay wall between you and the law that governs you. Georgia takes the troubling position that it can claim a private property right in its entire legal code.”

Public Resource purchased a copy of the OCGA and published it free-of-charge on the internet, sparking Georgia’s lawsuit. According to ...

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 a vehicle under the influence of an intoxicant. A bench trial took place on July 11, 2016. As required under state law, prior to the presentation of evidence, the judge advised Eduwensuyi that “you have a right to testify if you choose to do so.” He further advised that “you also have a right not to testify,” and “your attorney can give you advice about whether or not you should or should not testify, but ultimately, it’s your decision.” Eduwensuyi told the judge that he understood. Notably, however, the court failed to advise him that the decision not to testify may not be used against him.

The State then presented the testimony of the arresting officer. Afterwards, the defense announced that it would not be presenting evidence.

The judge then advised Eduwensuyi again that he has “a right to testify” and that if he decides “not to testify ...

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 least be able to find the answers. But it turns out that the data related to police-involved shootings in the United States are notoriously sparse and very difficult to gather.

In the wake of the 2014 killing of Michael Brown by Ferguson, Missouri police, the media began looking for comprehensive data on police shootings. However, such information was not available; not even the FBI has these data. Then-Director James Comey called the lack of data “embarrassing” and launched a federal initiative to collect information from police departments across the country. But according to VICE News, only 35 out of 18,000 U.S. law enforcement agencies participated in Comey’s initiative.

Fortunately, major media outlets did not give up. The Washington Post and The Guardian both began to tally data from their own reports, as well as from other media sources from across the nation. VICE News did the same over ...

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 the Los Angeles gang-related murder of Cynthia Portillo in February 2005. Rodriguez was implicated in the crime by two gang members. He was arrested and interrogated by LAPD detectives on March 8, 2005, when he was 14 years old.

After a lengthy series of questions about his identity and other background information, the detectives read the Miranda warnings to Rodriguez. They then questioned him about his involvement in the murder. He denied any; they said he was lying. Eventually, Rodriguez invoked his right to counsel. At that point, he was transported to the central station to be booked.

When he returned to the local police station, Rodriguez asked one of the detectives what was going to happen to him and asked him for a business card because he might want “to talk” with the detective. However, the detective advised Rodriguez that he could not talk with him because Rodriquez had ...

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, and Las Vegas are currently using StingRay devices (also referred to as cell site simulators). However, the exact dates of initial use, as well as how often they are deployed are closely guarded secrets. The devices mimic cell phone towers and sweep up cell phone data from an entire area, and some can also intercept texts and calls and secretly take information from phones.

Privacy advocates are even more concerned about what they think is increasing government encroachment on an ever-shrinking universe of privacy, in which law enforcement is increasingly seen as complicit in legalized spying on its own citizens. The criminal justice system is currently perceived by many to be unconcerned about protecting the privacy rights of innocent citizens whose information gets swept up in indiscriminate data grabs by overreaching law enforcement agencies. The maddening lack of transparency by law enforcement agencies only reinforces the perception, which in turn ...

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 for “suppressing exculpatory evidence, failing to correct false testimony, and meeting with a represented witness without notifying or obtaining permission from the witness’s lawyer,” according to the website The Open File, hopefully will be a step in the direction of more (some) prosecutorial accountability.

The October 2017 order from the Massachusetts Board of Bar Overseers, after an eight-day trial, resulted in a public reprimand, generally considered the highest level of discipline that does not require a suspension of the license to practice, on the charge of meeting with a represented party without his counsel present. It also opened the trial record to the public.

This sanction is significant because in most instances prosecutors on both the state and federal levels are not held accountable for ethical violations that dilute a defendant’s rights to a fair trial. One could argue that the bar’s lack of meaningful disciplinary action for previous ...

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 a modified vertical approach to the doctrine rather than opt for the expansive horizontal approach for which the Commonwealth had argued.

On September 21, 2011, Philadelphia Police Officer Joseph McCook and his partner observed Alwasi Yong participate in a controlled drug buy with their confidential informant (“CI”) in front of a residence at 3202 North Fairhill Street. A couple of days later, a group of approximately eight officers executed a search warrant at the residence. McCook was positioned at the back of the group. Yong was standing in the living room when they entered. Officer Gibson immediately seized Yong, patted him down, and recovered a handgun from his waistband. A search of the property resulted in the discovery of 100 plastic bags of marijuana. There was no indication that McCook ever advised Gibson of Yong’s participation in the controlled drug buy days earlier.

Yong was charged with numerous drug and ...

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 convictions constituted illegal sentences under K.S.A. 22-3504.

In 2013, Gabino Ruiz-Ascencio was involved in two separate incidents that resulted in trial for multiple charges. He was convicted of four of the charges. The district court sentenced him to “272 months for the attempted first-degree murder, 12 months for the aggravated assault, and 8 months for the use of a communication facility, to be served concurrently, and life in prison with a hard 25 for the first-degree murder, to be served consecutively to the sentence for the attempted conviction.” The court also imposed lifetime post-release supervision on all four counts.

Ruiz-Ascencio appealed his convictions and sentences. He argued that the sentences were illegal under K.S.A. 22-3504 because the periods of supervision do not conform to the applicable statutory provisions.” The Kansas Supreme Court upheld his convictions but ruled that his sentences were illegal.

The Supreme ...

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 assistance of counsel because he did not present a readily available and legally sufficient defense of diminished mental capacity.

The December 29, 2017 opinion analyzed the case against Francis G. Hernandez. Hernandez was convicted in April 1983 of the brutal murder of two young women. Both Edna Bristol and Kathy Ryan were raped, sodomized, and strangled to death. Both victims suffered pre-mortem bruising and tearing in the anal and vaginal areas, suggesting that something the size of a baseball bat had been inserted. Both women also had bite marks on their breasts and singed pubic hair.

 Hernandez was arrested for the crimes and confessed after a five-hour interrogation. He gave a detailed description of the rape and murder of the two women. In addition, a variety of physical evidence linked Hernandez to the crimes. The evidence against him was strong, and his defense lawyer presented a very weak defense of ...

$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 to get search warrants, hiding exculpatory evidence, coercing false confessions, conducting improper strip searches, denying medical attention to prisoners, obstructing the right of freedom of speech, and gunning down young Black people at a sickening rate. Maybe these things will never stop. Certainly, they won’t stop completely. These problems have been with us since ancient Rome. “Quis custodiet ipsos custodes,” they asked. “Who will guard the guards themselves?” So, when Paul Wright invited me to write a quarterly column about police misconduct for a new journal, I was initially uncertain how to proceed. Sadly, there’s no magic bullet that can make the problem of police officers abusing their authority go away.

In my column, I’ll talk about how police misconduct and efforts to curb it have changed since I passed the bar in 1970. On the negative side, for example, the militarization of local police departments over the ...

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 national security and domestic criminal ‘assessments,’ precursors to full investigations,” it said recently, and that usage is not always disclosed, as required by the nation’s highest court.

Section 702 of FISA is the provision that specifically “allows the government to obtain the communications of foreigners outside the United States, including foreign terrorist threats,” according to the House Intelligence Committee FAQ sheet. However, Section 702 does not authorize the government to target the communications of any American. According to the Office of the Director of National Intelligence, there are strict guidelines governing the use of Section 702, which “cannot be used to intentionally target any U.S. citizen, or any other U.S. person, or to intentionally target any person known to be in the United States. Section 702 cannot be used to target a person outside the United States if the purpose is to acquire information” from ...

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 past “serious or violent” felonies were “third strike defendants” and sentenced to an indeterminate term of life imprisonment with a minimum term of at least 25 years. Under the original Three Strikes law, a third strike defendant was subject to a life term upon conviction of any new felony, regardless of whether it was classified as “serious or violent.” 

In 2012, the Three Strikes Reform Act of 2012 (“Act”) was passed. It reduced the defendant class for enhanced sentences for third felony convictions. A current or future defendant facing a third felony that is neither serious nor violent faces second strike punishment. A defendant already serving a third strike sentence for a non-serious, nonviolent felony may seek sentence reduction with certain past offenses excepted. Reviewing courts have discretion to deny a reduction if it would cause “an unreasonable risk of danger to the public safety.” The state must ...

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 Court, the Court held that evidence obtained thereafter had to be tossed.

Victoria Livingstone pulled her car off the road to enter an address into her GPS. A state trooper in a marked police car pulled alongside her car, activated his overhead emergency lights, and signaled for Livingstone to roll down her window. The trooper asked where she was going, and she answered. He then pulled in front of her car, and another police car pulled behind her. Asking for Livingstone’s driver’s license, the trooper said he thought she had been drinking. She had been; her blood alcohol level read .205 when she took a blood test.

Livingstone was charged with DUI. She filed a motion to suppress the blood alcohol content evidence on the basis that she was unlawfully seized in violation of the Fourth Amendment. The trial court denied the motion, and she was convicted after a non-jury ...

$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 ...

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 two men. When Drug Enforcement Administration (“DEA”) task force members executed a search warrant at the Tiganos’ residence on the morning of the arrest, they discovered over 1,400 marijuana plants. On October 2, 2008, Tigano and his father were each indicted on six counts. Four of the counts charged drug offenses related to the alleged marijuana growing operation; the remaining two counts charged weapons offenses stemming from firearms found at the residence.

Nearly five years later, on November 25, 2013, Tigano’s father pled guilty to one count of manufacturing 50 or more marijuana plants. Tigano refused to accept a plea and proceeded to trial—nearly seven years after his arrest—on May 4, 2015. He was convicted by a jury on May 8, 2015 on five of the six counts in the indictment. Tigano was imprisoned during the entirety of the nearly seven years of pretrial proceedings. On appeal, Tigano argued ...

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(a)(4), (c)(1.5), which prohibits carrying or possessing a firearm within 1,000 feet of a public park, school, courthouse, public transportation facility, or residential public housing facility. He received a sentence of two years of probation.

In November 2015, he filed a post-conviction petition to vacate his conviction because the statute is unconstitutional under the Second Amendment to the U.S. Constitution. Chairez argued that the statute essentially constitutes a blanket prohibition on carrying a firearm in public rather than a ban limited to specific sensitive locations. The circuit court agreed with him, stating that the statute “is a near comprehensive ban” with the practical effect of making it virtually impossible for a person to go in public with a legal firearm without “accidentally and unknowingly entering within a thousand feet” of a listed location. The circuit court declared the statute unconstitutional and vacated Chairez’s conviction. The ...

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. Clair County, Missouri sheriff’s office arrived at the residence of Josh Foley and Ashley Mitchell to serve an arrest warrant for Foley for illegal drug activity. Vicki Gilmore, Foley’s girlfriend, was present at the residence at the time. Officers subsequently obtained a search warrant for the residence and found a small bag of white powder in the bathroom. A lab analysis confirmed the powder was methamphetamine.

Officers found no evidence that Gilmore shared the residence with Foley. The detective who had conducted the search testified at trial that he found no female clothes in the residence, no personal items belonging to Gilmore other than her purse, and no mail in her name at the residence. Furthermore, the meth was not in plain view; instead, it was hidden on the third shelf of the medicine cabinet. Nevertheless, Gilmore was charged with possession of methamphetamine.

At trial, Gilmore filed a motion for ...

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 practicing law.

Every state bar association acts as gatekeeper to the roll of individuals actually permitted to practice law and represent clients within the state. The principal way in which it does so is through its character and fitness committee, and Simmons’ application to sit for the Washington bar exam was summarily rejected by the Washington State Bar Association’s Character and Fitness Board by a 6 to 3 vote.

Although the decisions of the Bar Association’s Admissions Committee are confidential, the obvious reason for the rejection was her previous criminal behavior. Simmons stated, “It’s very hard, personally for myself and for my children. [It sends] a strong message to the community that second chances are really, really hard to get.”

After spending three years in law school, Simmons was faced with the prospect of an appeal to the Washington Supreme Court, which has the final word on whether ...

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 locked vehicle parked on the grounds of the U.S. Capitol in Washington, D.C., in violation of 40 U.S.C. § 5104(e)(1). Appearing pro se, he asked the Federal District Court of the District of Columbia to dismiss the indictment on the ground that the statute in question violates the Second Amendment. He also argued that the indictment violates due process because he was denied fair notice that weapons were banned in the parking lot. After a hearing, the district court denied both claims.

Months later, Class entered into a written plea agreement in which he pleaded guilty to violating 40 U.S.C. § 5104(e). The plea agreement specified various rights that he agreed to waive and listed various claims he could raise on appeal. The agreement was silent about his right to raise on direct appeal a claim that the statute of conviction ...

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 to The Free Thought Project (“TFTP”), police killed at least 1,184 Americans in 2017. Terrorists, on the other hand, killed 12. Those sworn to uphold the law have killed nearly 100 times as many as those attempting to make a political statement through an act of violence on American soil.

The number killed in mass shootings, such as those in Nevada and Texas, are not included in this government tally of terrorist killings. But according to TFTP, even if the deaths from these mass shootings are included, police have still killed far more people than all the mass shooters in 2017 combined.

The tendency of police to kill so many Americans has vexed criminologists and sociologists. Some suggest that America is riddled with crime, but the numbers don’t support that thesis. In the United Kingdom, there are 109.96 crimes per 1,000 citizens. That is nearly three times ...

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 other police departments underscores the challenge law enforcement faces nationwide to rid itself of problem cops.

Over the past decade, New Orleans has forced out or fired at least 248 officers. Dozens of those cut loose were hired by another police department, and half were fired yet again.

A 2011 Department of Justice civil rights investigation found that New Orleans officers “routinely” used unnecessary force and conducted unlawful arrests, and that the public had lost faith in the department. City leaders in response instituted reforms, leading to an exodus of officers.

One ousted New Orleans officer, Carey Dykes, was sued three times in two years—once when witnesses said he “brutally beat” a man, another when a pregnant woman said he “slammed” her face into the ground, and another for false arrest. The city settled the lawsuits, and Dykes was allowed to keep his job. He would be suspended three more ...

$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 the jury determined that he had “committed the offense for the benefit of, at the direction of, and in association with a criminal street gang” in violation of Cal Pen Code § 186.22, subd. (b)(1)(C). Watts filed a pro se motion asking the trial court to “reweigh the evidence regarding the sufficiency of the evidence to support the gang enhancement” pursuant to Cal Pen Code § 1181.

At the hearing on the motion, Watts reiterated his position on the gang enhancement issue. The trial court insisted that “[i]t’s not for me to reweigh the evidence.” Watts countered that subdivision (6) of the statute expressly directs the trial court to independently reweigh the evidence. The trial court rejected Watts’ argument.

Watts appealed, arguing, among other issues, that the trial court abused its discretion in denying his motion for a new trial on the basis that ...

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 passengers in the vehicle. The officers reportedly recognized driver Anthony Ortiz and one of the passengers in connection with various previous drug and weapon offenses.

One officer asked Ortiz if there were any drugs or weapons “in the vehicle.” He responded by saying, “No, you can check.” All three were directed to exit the vehicle, placed in handcuffs, and patted down. None of them had any weapons, but the two passengers were in possession of marijuana.

A drug dog circled the vehicle but did not alert to anything. Officer also searched the front and back seat areas and did not find any contraband. An officer then checked under the hood of the vehicle and removed the air filter. He found a black bag containing two guns. Ortiz was on the side of the road during the search under the hood; at no time did he object to the ...

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, but he made it clear multiple times that he would never do so. After that proved unsuccessful, the prosecution spent the next three years trying to convict Armstead allegedly in an effort to leverage a conviction to get him to testify against Wiggins. In May 2013, prior to Armstead’s third trial, Wiggins filed a motion to dismiss charges against him on constitutional speedy trial grounds. His motion was denied.

He spent the entire six-plus years prior to trial incarcerated without bail. Finally, Wiggins pleaded guilty in exchange for a 12-year prison sentence. On appeal, the Appellate Division ruled that Wiggins’ constitutional right to a speedy trial was not violated. The New York Court of Appeals reversed.

The Court of Appeals began its analysis by noting there is no “per se period beyond which a criminal prosecution may not be pursued.” Instead, the Court utilizes a five-factor test set forth ...

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 two handguns in a meeting of the commissioners, court, in violation of Texas Penal Code § 46.035(c). He was convicted. After, the State moved for forfeiture of the guns pursuant to Texas Code of Criminal Procedure article 18.19(e), which authorizes forfeiture of a weapon upon conviction for “an offense involving the use of the weapon.”

The trial court granted the motions. Upon appeal, the court of appeals ruled that the forfeiture proceedings were civil in nature. It then affirmed the forfeitures, ruling that “use” of a weapon under article 18.19(e) includes merely possessing the weapon, and a separate and distinct offense is not required. The decision was appealed to the Texas Supreme Court.

The question before the Supreme Court was whether mere possession of a firearm was the “use” of the firearm that would trigger mandatory forfeiture. The Court held it was not ...

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’ character for truthfulness by evidence of a criminal conviction.

That is, Rule 609(a)(1) allows lawyers to impeach a witness with his or her felony conviction. Evidence of a previous felony conviction is used to challenge the witness’ overall truthfulness. This type of impeachment has been called a “charade,” a “hoax,” and “discriminatory and unfair.”

The issue may seem obscure, but to criminal defendants with prior felony convictions who wish to testify on their own behalf in their current trial, it is a very real and severe disadvantage. U.S. Magistrate Judge for the Eastern District of Pennsylvania Timothy Rice published an article in the Temple Law Review titled “Restoring Justice: Purging Evil from Federal Rule of Evidence 609.”

Judge Rice challenges Rule 609’s underlying premise that felonies, even those unrelated to truthfulness, “are always relevant to the credibility of all witnesses in all ...

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 for simple possession of marijuana.

As of mid-February 2018, that will no longer happen. Philadelphia’s District Attorney Larry Krasner instructed his assistant DAs to drop the 51 pending cases for simple possession, and not to pursue them in the future. In a news conference, he stressed that the policy applies only to possession of small amounts of pot. “We are going to tell them, yes, drop any cases that are simply marijuana possession,” Krasner said.

The new policy still allows police to issue a $25 ticket and does not apply to those who possess marijuana with the intent to distribute. Krasner said that the policy reflects his desire to direct law enforcement resources towards solving serious crimes. “I did it because I felt it was the right thing to do,” Krasner told NBC Philadelphia. “We could use those resources to solve homicides.”

Krasner’s announcement came on the ...

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 at the same time. First, he sold a gram of heroin. After this sale was completed, the CI persuaded Jackson to sell him a gun, so he left to get the gun. A few days later, Jackson sold another gun to the CI. When that transaction was completed, he sold some heroin to the CI’s friend, who was actually an undercover agent. When law enforcement executed a search warrant on Jackson’s properties, they found drugs and cash—but no guns.

Jackson was charged with being a felon in possession of a firearm and distribution of heroin; he pleaded guilty to all the charges. Prior to sentencing, the presentence investigation report calculated his guidelines sentencing range to be 110 to 137 months, which included a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (“Enhancement”) for “using or possessing a firearm in connection with another felony offense, to ...

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 McDonnell in court to keep the list secret.

The list is known as the Brady list, after the seminal U.S. Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963), which held that a prosecutor’s withholding of favorable evidence from a defendant violates his due process rights under the U.S. Constitution. The list was started in 2014 to track law enforcement officers who have a history of misconduct that could affect their credibility as a witness in a trial. It has grown over the years to include the names of several hundred officers.

California is among 22 states that keep officer discipline records secret from the public eye and is the only state that blocks prosecutors from seeing police personnel records. While the list comprises but a small percentage of the roughly 9,400 sworn officers in the department, officers on the Brady list were used ...

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 23andMe privacy officer Kate Black, it warns customers that results are subject to disclosure to governmental agencies: “We try to make information available on the website in various forms, so through Frequently Asked Questions, through information in our privacy center.” She indicated the company had not yet turned over any customer information, but said, “We would always review a request and take it on a case-by-case basis.” Ancestry.com said that it had already provided customer information in response to a warrant in 2014.

When 23andMe customer Eric Yerham, of Jacksonville, Florida was contacted by a local television statement for comment on this policy, he indicated that he was unaware of the policy and wasn’t happy about it. “The police make mistakes, and I would rather not be on the unfortunate end of one of those mistakes, as a result of my DNA being somewhere that is ...

“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 cards generally allow the bearer to get out of minor infractions, such as speeding tickets. According to the New York Post, presenting one lets police officers know that you have some status with an NYPD member. While few outside of police circles have ever heard of such a practice, it has been around for decades. And it’s not without controversy.

“Cop unions are protection rackets,” said Adam Bates, former policy analyst with the CATO Institute’s Project on Criminal Justice.

The move to limit the number of cards given to cops was made by Patrick Lynch, president of the NYPD PBA. According to the Post, the cut was ordered to stop the sale of the cards, which can sell for as much as $200 on eBay.

Members of the force were not happy with the decision to slash the number of cards they can give out. “They are treating active ...

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 in a 42 U.S.C. § 1983 excessive force lawsuit filed against them.

On an early August morning in 2012 while responding to a domestic disturbance call, Haywood County Deputies Michael Price and Keith Beasley observed David Hensley and his two daughters scuffle on the front porch. They witnessed Hensley strike his older daughter with a handgun in his possession. He then walked off the porch towards the deputies. At that point, they exited their vehicle and fatally shot Hensley.

Whether the muzzle of the gun was pointed towards the ground or at the deputies as he approached them was in dispute. What wasn’t in dispute was the fact that the deputies neither announced their presence nor directed Beasley to drop the gun. The deputies acknowledged that they did neither; in fact, they admitted that neither of them ever spoke to Hensley. 

Hensley’s widow and daughters sued 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 section 490.2. The Court further held that the prohibition against double jeopardy barred retrial to prove the vehicle’s value.

When D.N., a juvenile, was found to have committed burglary and theft, the State offered no proof that the value of the vehicle was worth more than $950 to trigger the felony charges, yet the juvenile court exercised its discretion and determined the vehicle theft was a felony without this evidence. D.N. appealed.

The issue before the Court of Appeal was whether the State had failed to prove the stolen vehicle was worth more than $950, which is a necessary threshold amount to be considered a felony offense under Proposition 47’s new Penal Code § 490.2. The State argued that Vehicle Code § 10851 did not fall under Proposition 47’s changes, and that even if it did, it could retry D.N. to prove the vehicle’s value ...

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 Marc Kilmer was found guilty by a jury of unlawful assault, among other offenses, the State filed a recidivist information requesting a life sentence based on his two prior convictions for driving while license revoked for driving under the influence. Kilmer filed a motion in opposition, arguing that the sentence was in violation of the “proportionality clause” in Article III, Section 5 of the West Virginia Constitution. The sentencing court denied Kilmer’s motion and imposed the life sentence. He appealed, raising the same argument.

Under West Virginia Code § 16-11-18(c), a person“shall” be sentenced to life in prison if “twice before convicted in the United States of a crime punishable by confinement in a penitentiary.”

The Supreme Court explained that the “constitutionality of the recidivist statute is well-established,” but the Court has “historically adopted a rather strict and narrow construction” because of its harsh result. The Court ...

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 sued the State under the Wrongful Conviction and Imprisonment Act, Miss. Code Ann. § 11-44-1, et seq., but the State was granted summary judgment. He appealed and was eventually awarded $126,507 for wrongful incarceration. His attorneys were awarded $31,626.75, i.e., 25% of Hall’s award. They appealed.

At issue was how the attorney’s fees provision of Miss. Code Ann. § 11-44-7(2)(b) should be interpreted. It provides for an award of 10% for preparing and filing a claim, 20% for litigating the claim “if” contested, “and” 25% “if” the claim is appealed. Hall’s attorneys argued that the use of the term “and” means that the award amount at each stage is added to the award amount from the preceding stage or stages, resulting in an award of 55% at the appeal stage. Attorney’s fees under the statute are not deducted from the client’s award.

The Supreme ...

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 bottle of cologne and $5 from a neighbor. The court agreed with Humphrey’s counsel that the bail was excessive, and ordered judges in the state to renounce the conventional bail schedule for criminal offenses. This comes after a statewide push to end the money bail system as discriminatory to the poor. “Bail decisions should be based on danger to the public, not dollars in your pocket,” stated Becerra. Opponents of the effort for change argue that monetary stakes ensure that people will show up in court, and that bail-bond firms provide criminal-justice accountability at no cost to taxpayers.

Florida: Former police officer Michael Eugene Williams was sentenced on January 29 to life in prison for paying a Texas woman to sexually abuse her three-year-old daughter and send him photographs and videos. Williams asked the mother to send him videos of the child performing sexual acts on the mother and ...




 

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