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Prisoner Education Guide

Criminal Legal News: May, 2018

Issue PDF
Volume 1, Number 6

In this issue:

  1. Parallel Construction: Building Criminal Cases Using Secret, Unconstitutional Surveillance (p 1)
  2. N.Y.’s Top Court Clarifies Freedom of Information Exemption for Disclosure of Confidential Sources of Information (p 7)
  3. From the Editor (p 8)
  4. Texas Court of Criminal Appeals Holds Defendant Entitled to Self-Defense Jury Charge if There is Any Evidence to Support It (p 9)
  5. Guilty Plea Does Not Foreclose Challenge To Constitutionality Of Conviction, U.S. Supreme Court Decides (p 10)
  6. Seventh Circuit Finds Plain Error Where Guilty Plea Accepted Without Rule 11 Colloquy (p 11)
  7. The Sex Offender Registry: It’s Not What You Think (p 12)
  8. N.C. Supreme Court Rules Deficient Indictment Not Jurisdictional and Issue Can’t be Raised for First Time on Appeal (p 13)
  9. Congressional Spending Bill Provision ‘Clouds’ Constitutional Rights in Criminal Probes (p 14)
  10. U.S. District Court in Georgia Holds Spousal Testimonial Privilege Applies to Pre-Marital Events (p 16)
  11. Asset Forfeitures Fund New York DA’s Office Bonuses (p 17)
  12. Texas Court of Criminal Appeals: Furtive Gestures, Brief Visit Not Probable Cause (p 18)
  13. Qualified Immunity: The Supreme Court’s Unlawful Assault on Civil Rights and Police Accountability (p 18)
  14. Wisconsin’s 6,000-plus Untested Rape Kits Include Over 2,000 Involving Child Victims (p 19)
  15. $300,000 Settlement in Suit Over Death of Intoxicated Man Abandoned by Deputies (p 20)
  16. Eleventh Circuit Holds Court May Not Dismiss 2255 Motion by Invoking Collateral Attack Waiver Sua Sponte (p 20)
  17. Kansas Supreme Court Nixes Probation After Full Sentence of Confinement Served (p 21)
  18. Texas Quietly Authorizes Nation’s First Public Safety Employees Treatment Courts (p 22)
  19. First Circuit Modifies Emergency Aid Doctrine for Warrantless Entry of a Home (p 22)
  20. $42 Million Paid Out in Decade of New Jersey Police Criminality, Abuse (p 23)
  21. Controversial Police Interrogation Technique That Often Results in False Confessions Abandoned by Influential Training Consultant (p 24)
  22. California Supreme Court Grants Habeas Petition and Vacates Capital Murder Conviction Due to False Expert Testimony at Trial (p 25)
  23. 9th Circuit: District Court Improperly Deferred to Nevada Supreme Court in AEDPA Analysis (p 26)
  24. Utah Supreme Court Changes Course on Admissibility of Preliminary Hearing Testimony at Trial (p 26)
  25. Study: Unionized Police? Increased Misconduct (p 27)
  26. Massachusetts High Court Vacates Felony-Murder Conviction for Failure to Suppress Cellphone Search (p 28)
  27. Kansas Supreme Court Rules Grant of ‘Use’ Immunity Insufficient to Compel Testimony (p 28)
  28. Trenton Police Officers’ ‘Violent’ Comments Captured on Body Camera (p 29)
  29. Texas District Attorney Stops Prosecuting Trace Drug Cases (p 29)
  30. Illinois Supreme Court Strikes Down Part of Two Stalking Statutes as Unconstitutional (p 30)
  31. NYU Students Form Dollar Bail Brigade to Help Free New Yorkers Held on $1 Bail (p 31)
  32. Sentencing Court’s Grant of Prior Custody Credit was Not ‘Clear Error’ to Allow for Removal (p 32)
  33. Sixth Circuit Denies Qualified Immunity for Officers in No-Knock Home Entry Case (p 32)
  34. Mississippi Supreme Court Reverses Conviction Ruling; State Failed to Prove ‘Constructive Possession’ of Marijuana (p 33)
  35. Former Civil Rights Lawyer Krasner Puts Justice Reform into Practice as New Philly DA (p 34)
  36. The ‘Office Shuffle’: Ohio Police Recycle Bad Apples Among Rural Departments (p 34)
  37. Eighth Circuit: Teague Analysis Bars Retroactive Application of Padilla Ineffective Assistance of Counsel Claim (p 35)
  38. Philadelphia Tests Automating the Bail Risk Assessment Process (p 36)
  39. Intellectual Disability and Wrongful Conviction in Death Cases: A Lethal Combination (p 36)
  40. Privacy Advocates Concerned About Google AI and Pentagon Drone Surveillance (p 37)
  41. $325,000 Paid by Sheriff’s Office to Settle Fatal Shooting Case Over Not Wearing Seat Belt (p 37)
  42. Prosecutors’ Offices Taking Thousands in Grant Money, Fueling Crackdown on Sex Buyers (p 38)
  43. New Jersey Supreme Court Interprets Criminal Harassment Statute to Avoid First Amendment Problem (p 39)
  44. $175,000 Settlement Reached in Lawsuit Alleging Officers Literally Tried to Feed Graffiti Suspects to K-9s (p 39)
  45. Iowa Supreme Court Announces Indecent Exposure Statute Does Not Apply to Still Images of Genitals (p 40)
  46. Arizona Supreme Court Announces Defendants May Claim Both Self-Defense and Misidentification (p 40)
  47. New Washington State Law Removes ‘Actual Malice’ Roadblock in Police Prosecutions (p 41)
  48. New York Times Investigation Spotlights NYPD Practice of ‘Testilying’ (p 42)
  49. News in Brief (p 42)

Parallel Construction: Building Criminal Cases Using Secret, Unconstitutional Surveillance

by Iris Wagner

Introduction

Ascension Alverez-Tejeda and his girlfriend stopped at a traffic light. When the light turned green, the car in front of them stalled. Alverez-Tejeda suddenly stopped before hitting the car in front of him, but the pickup truck behind him struck his bumper. Police arrived on the ...

N.Y.’s Top Court Clarifies Freedom of Information Exemption for Disclosure of Confidential Sources of Information

by Christopher Zoukis

The New York Court of Appeals made an important clarification to an exemption to the state’s Freedom of Information Law (“FOIL”), which restricts access to records compiled for law enforcement purposes that identify confidential sources or information.

The November 21, 2017, opinion ruled that the exemption may ...

From the Editor

by Richard Resch

This marks our sixth issue of Criminal Legal News. The response has been a pleasant surprise. While we were confident that there was a pressing need for a publication of this type—and that the content of each issue of CLN would provide readers with relevant, actionable legal ...

Texas Court of Criminal Appeals Holds Defendant Entitled to Self-Defense Jury Charge if There is Any Evidence to Support It

by Matt Clarke

On September 27, 2017, the Court of Criminal Appeals of Texas held that a judge must issue a jury charge on self-defense in a prosecution for aggravated assault with a deadly weapon even if the defendant’s version of events supporting self-defense is weak, contradicted, or not credible ...

Guilty Plea Does Not Foreclose Challenge To Constitutionality Of Conviction, U.S. Supreme Court Decides

by Brandon Sample, Esq.

Rodney Class pleaded guilty to illegally possessing a firearm on the U.S. Capitol grounds. Notwithstanding his guilty plea, Class appealed his conviction to the U.S. Court of Appeals for the D.C. Circuit. Class argued that his conviction was unconstitutional because the statute that ...

Seventh Circuit Finds Plain Error Where Guilty Plea Accepted Without Rule 11 Colloquy

by Christopher Zoukis

The U.S. Court of Appeals for the Seventh Circuit reversed a conviction pursuant to a guilty plea that the district court accepted, but was not accompanied by a Federal Rule of Criminal Procedure 11 colloquy. The January 25, 2018, opinion remanded the case for entry of ...

The Sex Offender Registry: It’s Not What You Think

by Sandy Rozek 

“Texas sex offender added to 10 most wanted sex offenders list.” “Virginia man arrested for sex crimes after third victim comes forward.” “Arizona sex offender sentenced to 100 years for child porn.” 

These are the sorts of headlines that inundate the news and media ...

N.C. Supreme Court Rules Deficient Indictment Not Jurisdictional and Issue Can’t be Raised for First Time on Appeal

by Dale Chappell

Deviations from statutory requirements are not jurisdictional and must be “properly preserved” for appellate review and not raised for the first time on appeal, the North Carolina Supreme Court held on November 3, 2017.

After Sandra Brice was found guilty by a jury in 2015 of habitual ...

Congressional Spending Bill Provision ‘Clouds’ Constitutional Rights in Criminal Probes

by Steve Horn

Civil liberties advocates have decried a provision tucked into the budget bill recently passed by Congress and signed into law by President Donald Trump, as an end-run around constitutional protections guaranteed under the Fourth Amendment to the U.S. Constitution.

That provision was originally the stand-alone CLOUD ...

U.S. District Court in Georgia Holds Spousal Testimonial Privilege Applies to Pre-Marital Events

On October 15, 2015, Joshua Davis, who then worked as a Brink’s driver, allegedly stole about $170,000 in credit-union funds skimmed from the collections he picked up at eight ATMs that he and co-worker Naheem Carrington had serviced that day.

After completing his collections for the day, defendant Davis ...

Asset Forfeitures Fund New York DA’s Office Bonuses

An investigation by Newsday has uncovered records showing bonus payments to Suffolk County, New York district attorney employees that totaled $3.25 million since 2012. The source of those funds? Assets seized in criminal cases.

Deputy chief homicide prosecutor Robert Biancavilla received a total of $108,886 between 2012 and ...

Texas Court of Criminal Appeals: Furtive Gestures, Brief Visit Not Probable Cause

by Dale Chappell

The Court of Criminal Appeals of Texas (“CCA”) held that “furtive gestures” alone did not give police probable cause to search a vehicle under the automobile exception to the Fourth Amendment’s warrant requirement.

When a marked police car pulled behind Andreas Marcopoulos’ truck, police said he made ...

Qualified Immunity: The Supreme Court’s Unlawful Assault on Civil Rights and Police Accountability

by Jay Schweikert

Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for ...

Wisconsin’s 6,000-plus Untested Rape Kits Include Over 2,000 Involving Child Victims

by Matt Clarke

Wisconsin has a huge backlog of untested rape kits. In 2017, state Attorney General Brad Schimel estimated there were more than 6,300 untested rape kits. The number of rape kits involving allegations of child sexual abuse was 2,441 as of late 2017. A little under ...

$300,000 Settlement in Suit Over Death of Intoxicated Man Abandoned by Deputies

by Matt Clarke

The family of an intoxicated man abandoned by Delaware County, Ohio, sheriff’s deputies at a Taco Bell before he wandered onto a highway and was fatally struck by a vehicle has settled a lawsuit against the county and several sheriff’s department officials for $300,000.

After several ...

Eleventh Circuit Holds Court May Not Dismiss 2255 Motion by Invoking Collateral Attack Waiver Sua Sponte

by Dale Chappell

A U.S. district court cannot, “of its own volition,” invoke a collateral attack waiver in a plea agreement to dismiss a § 2255 motion, the U.S. Court of Appeals for the Eleventh Circuit held on November 6, 2017.

“Efficiency can be a virtue, particularly ...

Kansas Supreme Court Nixes Probation After Full Sentence of Confinement Served

by Edward B. Lyon

The Kansas Supreme Court held that under the Kansas Sentencing Guidelines Act (“KSGA”) probation cannot be imposed after the full sentence of confinement has already been served.

James Kinder served as the caretaker for Joyce Wilson. He failed to obtain necessary medical treatment for her, and ...

Texas Quietly Authorizes Nation’s First Public Safety Employees Treatment Courts

by Matt Clarke

With little opposition from either party, the Texas Legislature passed HB 3391, authorizing the creation of the nation’s first public safety employees treatment courts. The courts will allow police, firefighters, prison and jail guards, and emergency medical services employees facing charges to defer criminal prosecution by entering ...

First Circuit Modifies Emergency Aid Doctrine for Warrantless Entry of a Home

by Richard Resch

The U.S. Court of Appeals for the First Circuit modified its position on the emergency aid exception to the Fourth Amendment’s warrant requirement by announcing: “officers seeking to justify their warrantless entry need only demonstrate ‘an objectively reasonable basis for believing’ that ‘a person within [the ...

$42 Million Paid Out in Decade of New Jersey Police Criminality, Abuse

Local governments in New Jersey have had to pay out more than $42 million over the last 10 years because of police criminality and abuse, according to a new series of investigative reports by the Asbury Park Press. The report found at least 19 deaths, 131 injuries, and seven sexual ...

Controversial Police Interrogation Technique That Often Results in False Confessions Abandoned by Influential Training Consultant

by Matt Clarke

In 1931, a commission to investigate Prohibition-era corruption appointed by President Hoover issued the Wickersham Report. The report criticized the so-called Third Degree, which was the standard police interrogation technique of the time and involved beating a suspect until he or she confessed, then lying about the ...

California Supreme Court Grants Habeas Petition and Vacates Capital Murder Conviction Due to False Expert Testimony at Trial

by Richard Resch

The Supreme Court of California granted a death row prisoner’s petition for writ of habeas corpus based upon the introduction of false evidence at trial and vacated his convictions in their entirety.

On November 17, 1991, 21-month-old Consuelo Verdugo was rushed to the emergency room at Delano ...

9th Circuit: District Court Improperly Deferred to Nevada Supreme Court in AEDPA Analysis

by David Reutter

The Ninth Circuit Court of Appeals held a Nevada federal district court erred in its analysis under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) by deferring to a state court’s determination that a death-sentenced prisoner was not intellectually disabled. The Court further held the ruling in ...

Utah Supreme Court Changes Course on Admissibility of Preliminary Hearing Testimony at Trial

by Christopher Zoukis

In a significant decision regarding Rule 804 of the Utah Rules of Evidence, the Utah Supreme Court reversed itself in a case involving the use of hearsay testimony from a preliminary hearing at trial in a criminal prosecution.

The September 6, 2017 opinion considered the criminal case ...

Study: Unionized Police? Increased Misconduct

by Derek Gilna

According to a December 2017 study by University of Chicago Law School researchers, data from Florida indicate that “shielding officers from the consequences of their actions ... result[s] in increased misconduct.” After Florida sheriffs’ deputies were allowed to unionize in 2003, such incidents of misconduct increased ...

Massachusetts High Court Vacates Felony-Murder Conviction for Failure to Suppress Cellphone Search

by Christopher Zoukis

The Supreme Judicial Court of Massachusetts reversed a felony-murder conviction and sent the case back for a new trial because the trial court failed to suppress evidence obtained from an illegal search of the defendant’s cellphone.

The November 21, 2017, opinion overturned the conviction of Aaron Morin ...

Kansas Supreme Court Rules Grant of ‘Use’ Immunity Insufficient to Compel Testimony

by Richard Resch

Jose Delacruz, Anthony Waller, and three others participated in the robbery of Joshua Haines, who was murdered during the act. Delacruz was convicted of aggravated robbery, but he was acquitted of felony murder. He was sentenced to 83 months in prison. Both the conviction and sentence were ...

Trenton Police Officers’ ‘Violent’ Comments Captured on Body Camera

by Derek Gilna

Trenton, New Jersey, police officers were captured on video making light of using flashlights to subdue suspects and ridiculing a critically injured gunshot victim suffering from a head wound.

All of the incriminating comments were captured on the body camera of supervisor and Trenton police Sgt. Charles ...

Texas District Attorney Stops Prosecuting Trace Drug Cases

In 2017, Harris County District Attorney Kim Ogg changed an office policy by stopping the prosecution of thousands of trace drug cases from the Houston, Texas area. In doing so, Ogg fulfilled promises made during her unsuccessful 2014 campaign and her successful bid for the office in 2016.

Ogg already ...

Illinois Supreme Court Strikes Down Part of Two Stalking Statutes as Unconstitutional

by Richard Resch

The Supreme Court of Illinois has taken the relatively rare step of striking language from two stalking statutes as facially unconstitutional because they violate the First Amendment to the U.S. Constitution.

In the November 30, 2017, opinion, the Supreme Court vacated Walter Relerford’s convictions for stalking ...

NYU Students Form Dollar Bail Brigade to Help Free New Yorkers Held on $1 Bail

by Christopher Zoukis

Judges in New York City courtrooms have an unusual option when it comes to the pre-trial release of a defendant charged with a minor crime: $1 bail. Hundreds of people accused of crimes such as theft of services, marijuana possession, and other minor offenses are required to ...

Sentencing Court’s Grant of Prior Custody Credit was Not ‘Clear Error’ to Allow for Removal

by Dale Chappell

The government’s “eleventh hour” motion to “correct” a sentence to remove credit for time served in a related case before federal sentencing was improperly granted by the district court, the U.S. Court of Appeals for the Fifth Circuit held November 16, 2017.

When Derrick Smothers, Terrell ...

Sixth Circuit Denies Qualified Immunity for Officers in No-Knock Home Entry Case

by Richard Resch

On October 29, 2014, at about 4 a.m., 13 Highland Park, New Jersey, police officers performed a no-knock entry into the Greer family home.

Without knocking or announcing their presence, the officers blasted the door open with a shotgun. All the officers were outfitted with SWAT ...

Mississippi Supreme Court Reverses Conviction Ruling; State Failed to Prove ‘Constructive Possession’ of Marijuana

by Dale Chappell

The State failed to prove that packages of marijuana hidden in a car truck were in the “constructive possession” of a passenger, who was unaware they were there especially when the driver claimed ownership, the Supreme Court of Mississippi held October 12, 2017.

Marvin Carver and his ...

Former Civil Rights Lawyer Krasner Puts Justice Reform into Practice as New Philly DA

by Derek Gilna

For decades, politicians have won many elections by promising to be “tough on crime,” which translated into escalating prisoner counts, unbalanced budgets, and societal disintegration of the inner city. In contrast, former civil rights attorney Larry Krasner won election as Philadelphia’s District Attorney by promising just ...

The ‘Office Shuffle’: Ohio Police Recycle Bad Apples Among Rural Departments

by Matt Clarke

An Ohio police officer who resigns under a cloud of pending disciplinary action or who is fired may not have reached the end of a law enforcement career. In some Ohio towns, employment as a police officer in another department is just down the road.

WCPO Cincinnati ...

Eighth Circuit: Teague Analysis Bars Retroactive Application of Padilla Ineffective Assistance of Counsel Claim

by Christopher Zoukis

The United States Court of Appeals for the Eighth Circuit ruled that Teague v. Lane, 489 U.S. 288 (1989), which bars retroactive application of new rules of criminal procedure on collateral review, applies to claims brought pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010 ...

Philadelphia Tests Automating the Bail Risk Assessment Process

by David M. Reutter

Philadelphia is using part of a $3.5 million grant to create a computerized bail-risk assessment tool. The effort is part of the city’s Reentry Project.

The MacArthur Foundation selected Philadelphia to take part in its Safety and Justice Challenge. According to Gabriel B. Roberts, spokesman ...

Intellectual Disability and Wrongful Conviction in Death Cases: A Lethal Combination

by David M. Reutter

The death penalty is sold by its advocates as a crime deterrent or a penalty reserved for the most heinous of crimes. The reality is that the death penalty is often used as a political tool for prosecutors and judges to enhance their re-electability and to ...

Privacy Advocates Concerned About Google AI and Pentagon Drone Surveillance

by Derek Gilna

Tech behemoth Google has signed a contract with the U.S. Department of Defense (“DoD”) to apply its artificial intelligence technology (“AI”) to improve the recognition and targeting ability of its 1,100-strong drone fleet, raising concerns that the technology might be used domestically for surveillance of ...

$325,000 Paid by Sheriff’s Office to Settle Fatal Shooting Case Over Not Wearing Seat Belt

by Derek Gilna

The Palm Beach County Sheriff’s Office in Florida settled the case of a 19-year-old man who was fatally shot six seconds after being stopped for not wearing a seat belt. The victim, Henry Bennett III, was shot by Deputy Andrew Cano in January 2016 when he ran ...

Prosecutors’ Offices Taking Thousands in Grant Money, Fueling Crackdown on Sex Buyers

By Steve Horn

Investigative articles published on March 24 by the Seattle-based alt-weekly The Stranger and the online publication The Intercept reveal that prosecutors’ offices in King County, Washington and nationwide have taken hundreds of thousands of dollars in private grant money which legal critics and defense attorneys have argued ...

New Jersey Supreme Court Interprets Criminal Harassment Statute to Avoid First Amendment Problem

by Christopher Zoukis

In a case involving a dispute between two prison guards, the Supreme Court of New Jersey clarified the kind of conduct necessary to expose an individual to criminal liability for verbally harassing someone else in the state.

William Burkert and Gerald Halton, both prison guards and members ...

$175,000 Settlement Reached in Lawsuit Alleging Officers Literally Tried to Feed Graffiti Suspects to K-9s

by Christopher Zoukis

A lawsuit filed over a K-9 cop attack on two street artists who were spray-painting train cars in Broward County, Florida, has settled for $175,000. The men, Humberto Pellegrino and Pedro Claveria, alleged that Broward County Sheriff’s officers Davis Acevedo and Gerald Wengert literally tried to ...

Iowa Supreme Court Announces Indecent Exposure Statute Does Not Apply to Still Images of Genitals

by Dale Chappell

Interpreting the word ‘exposes’ in Iowa’s indecent exposure statute, the Supreme Court of Iowa held on February 2, 2018 that texting an image of one’s genitals to another does not constitute “indecent exposure” and that counsel was ineffective for failing to challenge the sufficiency of the evidence ...

Arizona Supreme Court Announces Defendants May Claim Both Self-Defense and Misidentification

by Richard Resch

The Supreme Court of Arizona announced that a defendant is entitled to a self-defense jury instruction while simultaneously claiming a misidentification defense (he or she did not, in fact, commit the offense).

In October 2013, Antajuan Carson fought with multiple people at a house party. At one ...

New Washington State Law Removes ‘Actual Malice’ Roadblock in Police Prosecutions

by Derek Gilna

Two new Washington state laws have removed a statutory impediment to state prosecutors holding police officers accountable for reckless or negligent conduct. The measures eliminate the barrier of having to prove “malice” or “evil intent” in bringing criminal actions against police officers accused of wrongdoing.

According to ...

New York Times Investigation Spotlights NYPD Practice of ‘Testilying’

by Derek Gilna

An extensive New York Times investigation of the New York Police Department has uncovered that “at least 25 instances were found where judges or prosecutors reportedly determined that a cop’s testimony was likely untrue or embellished” since January 2015. It’s what observers commonly refer to as “testilying ...

News in Brief

Arizona: An Arizona prosecutor, Juan Martinez, has a reputation for taking ethically questionable actions in his work. Most recently, in his prosecution on behalf of the state against Jodi Arias (convicted of murder), he engaged in sexual relations with two women covering the case in hopes that they would write ...




 

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