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Prisoner Education Guide

Criminal Legal News: May, 2018

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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 scene, arresting the truck driver behind him for drunk driving. Alverez-Tejeda and his girlfriend were then questioned about the incident, leaving the keys in the car for processing. During this time, a bystander entered Alverez-Tejeda’s car and drove away. Alverez-Tejeda and his girlfriend, shocked, were left behind as the police on site chased after his stolen car. The car was recovered and searched, with police finding large amounts of cocaine and methamphetamine.

Unbeknownst to Alverez-Tejeda was the fact that the whole incident was staged. That is, every person involved in the incident, aside from Alverez-Tejeda and his girlfriend, was either a U.S. Drug Enforcement Agency (“DEA”) agent or a local police officer. Weeks before, DEA agents had learned that Alverez-Tejeda was transporting and dealing drugs across state lines. Upon learning this, Alverez-Tejeda was placed under surveillance until they tracked down his car and performed this elaborate ruse. By staging ...

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 only be applied when an express promise of confidentiality was made to the source or when the circumstances are such that “the confidentiality of the source or information can be reasonably inferred.”

Jessie Friedman and his father pleaded guilty to various sex crimes relating to their alleged ritualistic sexual abuse of children in the late 1980s. Friedman, who was 18 at the time of his plea, spent 13 years in prison for his conviction. His father died in prison.

In 2002, the film “Capturing the Friedmans” was released. The movie suggested that the Friedmans had been caught up in the wave of bizarre child sexual abuse cases in the 1980s and early 1990s, and that they were factually innocent. The filmmakers uncovered the use of unreliable and since discredited interview techniques on the child witnesses — including hypnosis — among other irregularities.

Friedman brought a federal habeas corpus petition ...

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 news, and information—the enthusiasm with which CLN is being received has exceeded our most optimistic readership projections as measured by subscriptions. Thank you.

Please note that this issue of CLN is being provided to all current subscribers of PLN. We hope that PLN readers enjoy this complimentary issue of CLN and decide to subscribe. With subscriptions to both CLN and PLN, readers will stay informed about the latest relevant legal news on all phases of the criminal justice system, from initial citizen-officer encounter through post-release supervision.

Our core mission is to provide interesting, relevant, and timely information that serves to educate and help readers with their situations, i.e. presentation of practical legal information that can be used to challenge convictions, sentences, and conditions of release as appropriate.

To help our efforts, please give us feedback regarding what you find helpful (or not helpful—be specific), suggestions for improvement, and anything ...

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.

Cesar Alejandro Gamino was with his girlfriend walking to his parked truck at about 1:30 a.m. in downtown Fort Worth, Texas. As they passed three men sitting on a street corner, one made a lewd remark. A verbal confrontation ensued. Gamino walked to his truck, pulled out a firearm, and pointed it at the men. Two off-duty police officers working as private security nearby heard Gamino shout, “I got something for you” as he brandished the weapon.

Gamino was convicted of aggravated assault with a deadly weapon. At trial, he testified the men had threatened to “grab [his girlfriend’s] ass,” “F her if they wanted to,” and “kick [his] ass.” The threats and the fact that he is disabled made him believe that he and his girlfriend were in danger when one of the men stood up and approached him. He said he pulled the ...

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 criminalized gun possession on Capitol grounds violated the Second Amendment.

The D.C. Circuit rejected Class’ challenge. According to the appeals court, Class’ guilty plea waived his right to challenge the constitutionality of his conviction.

Class sought and was granted certiorari by the U.S. Supreme Court. Justice Stephen Breyer, writing for the Court, framed the relevant legal question as “[d]oes a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution?” Answering that question in the negative, a 6-3 majority of the Court reversed.

The Court began its analysis by looking at 50 years of prior cases concerning the effect of a guilty plea on a subsequent challenge to a conviction. In Haynes v. United States, 390 U.S. 85, 87, n. 2 (1968), for instance, the Court noted its general recognition that a ...

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 a new plea.

Ricky Olson was indicted on charges of distributing sexually explicit photographs of his minor daughter in violation of 18 U.S.C. § 2252(a)(2). He initially pleaded guilty on April 6, 2016, pursuant to a plea agreement in which the government agreed to dismiss several charges and to recommend a sentence of not more than 180 months. Before accepting the plea, the district court conducted a Rule 11 colloquy.

Olson changed his mind soon after pleading guilty, however. On August 26, 2016, he moved to withdraw his guilty plea, and his attorney moved to withdraw from representation. Olson explained to the court that he hadn’t understood the plea agreement and that his attorney had given him bad advice. The district court granted both motions.

With a new attorney on board, Olson changed his mind again. On September 9, 2016, he appeared in court and said ...

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 outlets regarding those in the criminal justice system because of sex crime charges. The cumulative result is to leave the public with the impression that everyone who is labeled a sex offender has done some horrible things and deserves not only lengthy sentencing and harsh punishment but also inclusion on a public sex offender registry for as long as possible. 

However, the headlines that would show how untrue this is are seldom if ever seen. 

On March 12, the West Virginia Supreme Court overturned a sex offender parole violation for a man who has been imprisoned for more than three years. Forbidden any internet usage by terms of his parole, Bobby Ross was revoked and imprisoned when the parole board learned that his girlfriend with whom he lived owned a computer with internet access. In spite of the fact that he did not know the password for the ...

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 misdemeanor larceny, a felony, she challenged for the first time on appeal the indictment’s failure to comply with the requirements under N.C.G.S. § 15A928. Brice argued that the statutory requirements are jurisdictional, and the Court of Appeals agreed and overturned her conviction.

On appeal to the North Carolina Supreme Court, the State argued that failure to comply with the statute’s requirements is not jurisdictional, pointing out an apparent split between the appellate courts on the issue. The State asserted that “minor defects” that do not prejudice a defendant should not allow dismissal of the indictment. Brice countered that compliance with the statute is “no mere formality” to be ignored. The Court agreed with the State that compliance with the statute is not a jurisdictional defect requiring dismissal of the indictment, settling the split among the appellate courts.

The Supreme Court’s focus, however, was on the fact that ...

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 (Clarifying Lawful Overseas Use of Data) Act (H.R.4943 and S. 2383) bill and is buried on page 2,212 of the 2,232-page budget bill. It permits information to be collected from cloud computing companies by foreign governments on U.S. citizens living abroad to be fed to the U.S. Department of Justice and other federal investigatory agencies as part of criminal investigations, even if obtained without a search warrant. Generally, the Fourth Amendment requires that both probable cause and a search warrant be obtained by law enforcement before the search and seizure of “persons, houses, papers, and effects.”

Specifically, the CLOUD Act states that it “shall not be unlawful … for a provider of electronic communication service to the public or remote computing service to intercept or disclose the contents of a wire or electronic communication in response to an order from a foreign government ...

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 drove the Brink’s truck to Atlanta, where it ran out of gas. A tow truck was called. Davis phoned his then-girlfriend, Philicia Morris, to pick him up while Carrington waited in the back of the truck for the tow to arrive.

A month later, Davis was indicted on charges of theft of credit union funds, in violation of 18 U.S.C. § 2113(b) and possession of stolen credit union funds, in violation of 18 U.S.C. § 2113(c).

On January 7, 2016, Morris voluntarily submitted to an interview by FBI agents. She told the agents that, after the Brink’s truck broke down, Davis called her. He asked that she pick up him up so they could buy food at a nearby Wendy’s.

While Morris and Davis were at Wendy’s, Carrington called to say the police were at the Brink’s truck and wanted to talk with 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 2017, according to records obtained through New York’s Freedom of Information Law. Division chief Edward Heilig received $73,000. None of the bonuses received legislative approval.

Robert Calarco (D-Patchogue) aims to change that. He has sponsored a bill that would require asset forfeiture expenditures to be approved by the Public Safety Committee. Calarco told Newsday that these bonuses were an inappropriate use of asset forfeiture funds.

“Asset forfeiture money that comes into this county counts into the millions of dollars,” Calarco said. “That’s a lot of money to be spent at the sole direction of an individual with no oversight.”

Biancavilla referred to the bonuses as “stipends,” which he received because he served as both a nights and weekend on-call homicide prosecutor, and an acting deputy bureau chief. He told Newsday that he “had no idea” that the funds came from asset forfeiture proceeds, and he asserted ...

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 “furtive gestures” toward the center console. Police watched Marcopoulos visit a bar known for its drug scene for about three to five minutes, then pulled him over after he reportedly committed a traffic violation. He was immediately arrested. The officers searched his truck and found three small baggies of cocaine.

Marcopoulos pleaded guilty after the trial court denied his motion to suppress, but he reserved his right to appeal the issue. On appeal, Marcopoulos again argued that the search was unreasonable and had exceeded the scope of his arrest. A divided First Court of Appeals, however, rejected his claims and upheld the search under the automobile exception. The court ruled that Marcopoulos going to a bar “known for selling narcotics,” his short visit there, and his furtive gestures gave the police probable cause to search his truck under the exception. The CCA agreed to hear Marcopoulos’ case.

The narrow ...

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 government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit illegal misconduct unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.

In Pauly v. White, 874 F.3d 1197 (10th Cir. 2017), the Tenth Circuit used qualified immunity to shield three police officers who brutally killed an innocent man in his home. The officers had no probable cause to think Samuel Pauly had committed any crime, but they stormed his home with guns drawn and shouted that they had him surrounded — yet failed to identify themselves as police. Mr. Pauly and his brother ...

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 half of them involved children younger than 10.

According to published data, 62 percent of the rape kits involving child victims and 70 percent of the 3,300 rape kits involving adult victims are scheduled for testing in 2018. Private forensic labs are to undertake most of the testing.

Schimel vigorously objects to the term “backlog.” He said most of the kits were not tested because law enforcement chose not to test them. The reasons they might choose not to submit a rape kit include the victim refusing to consent to having the kit tested, or the evidence the kit could provide is unnecessary because prosecutors already have a conviction, overwhelming evidence that the sexual activity occurred, or they believe no crime occurred. However, in applications for federal grants to pay for crime lab work submitted in 2014 and 2015, Schimel repeatedly referred to the untested evidence as a ...

$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 for a court. But sometimes we can have too much of even a good thing. That’s what happened here,” Judge Rosenbaum began the Court’s opinion. The “efficiency” referred to was when District Court Judge Conway dismissed Michael Burgess’ § 2255 motion on her own initiative because of a waiver in his plea agreement stating, in effect, he would not pursue a motion under 28 U.S.C. § 2255, which is the federal statute governing challenges to a prisoner’s conviction or sentence. In his plea agreement, he expressly waived his right to appeal, which included his right to collaterally challenge his conviction and sentence.

The court accepted the plea agreement and sentenced him to 180 months in prison. He subsequently filed a direct appeal, but his lawyer filed a motion to withdraw under Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious appellate issues ...

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 as a result, he was charged with mistreatment of a dependent adult. He pleaded no contest. He had no prior convictions or adjudications, so his criminal history score was category I, which resulted in a presumptive sentence of seven to nine months’ imprisonment and 18 months’ probation.

By the time of the sentencing hearing, Kinder had been held in custody on the charge for 360 days. The State asked the district court to impose the standard presumptive sentence of nine months’ imprisonment and 18 months’ probation. The State conceded that he should receive 360 days of jail time credit. Kinder’s lawyer objected to any probation, arguing that “he’s maxed out his sentence,” i.e., he had already been confined for a longer term than the maximum period provided for in the KSGA. The court imposed the sentence requested by the State, and Kinder appealed.

The Kansas Supreme Court framed ...

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 a treatment program. Program fees will be up to $1,000, and those who complete it will have their criminal charges dismissed. Participants will neither face criminal punishment nor have a criminal record.

Public safety employees will be able to enter the program regardless of what kind of felony or misdemeanor offense with which they are charged. The only requirements are that the current or former public safety employee have “suffered from a brain injury, mental illness, or mental disorder that occurred during or resulted from the defendant’s duties as a public safety employee and affected the criminal conduct at issue” and “participation in the program was likely to achieve the objective of ensuring public safety through rehabilitation.”

The law requires: that the defendant be provided with legal counsel before volunteering for the program; an individualized treatment plan, and an opportunity to withdraw from the program at any point ...

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 house] is in need of immediate aid.’ ” In doing so, the Court explained that it is bringing “our circuit law into conformity with the Supreme Court’s precedent….”

On March 3, 2015, Matthew Hill overdosed and was transported to Morton Hospital in Taunton, Massachusetts. The following day, his sister filed a petition in district court to civilly commit Matthew for his protection as a drug addict pursuant to Mass. Gen. Laws. Ch. 123, § 35.

The state district court judge issued a warrant for his apprehension. The subject line of the warrant read: “Matthew Hill, 3 Eldridge Street.” Immediately below that, it read “CURRENLTY AT MORTON HOSPITAL.” The foregoing information was taken from the sister’s petition, which listed 3 Eldridge as Matthew’s address. However, that was his parents’ home address; he lived at 44 Weir Street.

Later that day, police arrived at 3 Eldridge Street to ...

$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 assaults that resulted in settlement payouts in New Jersey. Many of the officers involved remain on duty.

The report also reveals systemic failures that have contributed to a lack of accountability of police officers. Weak oversight and accountability mechanisms that contribute to cursory investigations or instances of obvious conflicts of interest arise, such as the handling of a brutality complaint against Atlantic City officer Andrew Jaques, who had his case investigated by his uncle.

A lack of statewide authority on professional standards allows problem cops to bounce among the state’s 466 local departments. In other parts of the U.S., a domestic violence arrest, a sustained misconduct allegation, or a failed psych exam might lead to an officer being decertified to work in law enforcement, state-wide. Not so in Jersey, where in addition to cash payouts, settlements with terminated officers often include agreements not to disclose disciplinary histories or misconduct ...

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 beating in court (though regular observers of today’s criminal justice system know that the Third Degree has not disappeared completely).lthough you may never have heard the term “Reid Technique” of police interrogation, you have likely seen it in action in televised police dramas. Using this technique, police lock suspects into claustrophobic rooms, then bully, cajole, and lie to them until they confess. During some interrogations, police feed the suspect information about the crime known only to the perpetrator and police then use its presence in the confession to “prove” its validity. Critics say the Reid Technique increases the chances of a false confession. Recently, a leading company in the training of law enforcement announced it would no longer teach the Reid Technique, replacing it with non-confrontational methods of interrogation in its training programs.

The Report was popularized in a widely read book that shocked the public. Soon, juries began ...

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 Regional Medical Center. Her mother and Vicente Benavides Figueroa reported that Consuelo had been chasing her sister and hit her head on a door. She “was limp and minimally responsive to external stimulation.” Medical personnel observed mild redness on her vagina while attempting to insert a catheter, which they repeatedly tried unsuccessfully.

As her condition worsened, she was transferred to the Kern Medical Center. While attempting to insert a catheter once again, staff noticed a bruise on Consuelo’s “external genitalia and a tear extending from her urethra to vaginal opening.” Other injuries were observed, but the surgeon who operated on her did not know whether she had been sexually assaulted.

The next day, pediatrician Jess Diamond examined her and concluded that, in his opinion, she had been sodomized. She was subsequently transferred to UCLA Medical Center but died on November 25, 1991. Dr. Dibdin, the forensic pathologist, concluded ...

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 Hurst v. Florida, 136 S. Ct. 616 (2016) is not retroactive. (See December 2017 issue of CLN for discussion of Hurst.)

Before the Ninth Circuit was the appeal of Robert Ybarra, Jr., who was sentenced to death for the 1979 kidnapping, beating, and sexual assault of 16-year-old Nancy Griffith. Ybarra doused her in gasoline, set her on fire, and left her to a slow, agonizing death. The Court opined there was no question this is within the “narrow category of the most serious crimes” that qualify for the death penalty.

Ybarra’s previously sought habeas corpus reviews, claiming that intellectual disability disqualified him for the death penalty, were dismissed on “technical procedural reasons” for failing to fully exhaust remedies in state court. After his federal habeas petition was denied and affirmed in federal court, he reignited the intellectual disability claim in state court.

The state trial court held a hearing and ...

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 brought against DeSean Goins for two instances of assault. In July 2012, Goins confronted Gabriel Estrada, who he believed had stolen his phone. When Goins brandished a knife, Estrada fled. But Goins wasn’t done looking for his phone.

Later that day, Goins confronted Jacob Omar, a friend of Estrada’s. A fracas ensued, and Goins bit Omar’s earlobe off. He also stabbed Omar in the arm. Goins was arrested and charged with mayhem and two counts of aggravated assault.

At the preliminary hearing, both Estrada and Omar testified. Goins’ lawyer cross-examined Estrada. About two months later, the trial commenced, but the prosecution announced that Estrada had not appeared for the trial and moved that he be declared unavailable, and that his preliminary testimony be admitted and read to the jury.

The prosecution detailed for the court various steps it took in attempting to procure his appearance at trial. Nevertheless, Goins argued ...

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.

The researchers wrote, “Our primary result is that collective bargaining rights lead to about a 27% increase in complaints of officer misconduct for the typical sheriff’s office.”

The study found that collective bargaining results in “a lengthy list of extra rights for deputies. While due process should be afforded to everyone, the version of due process citizens make do with contains none of these perks and protections.” These extra protections include (1) the right to “be informed of the nature of the investigation before any interrogation begins;” (2) the right to receive “all witness statements … and all other existing evidence, including, but not limited to, incident reports, GPS locator information, and audio or video recordings relating to the incident under investigation … before the beginning of any investigative interview of that officer”; and (3) the requirement that all “identifiable witnesses shall be interviewed, whenever possible, prior ...

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 for the felony-murder of Chad Fleming in November 2009. Morin and his co-defendant Nelson Melo allegedly conspired to rob Fleming, a supplier of Percocet pills. During the robbery, which was not intended to include a murder, Morin fought back and was beaten and strangled to death.

At trial, the prosecution presented three theories of guilt: premeditated murder, extreme atrocity or cruelty murder, and felony-murder, with the unarmed robbery as the predicate felony. The jury convicted Morin of felony murder. Morin moved for a new trial and was denied. His direct appeal and his motion for a new trial were consolidated for review by the Supreme Court.

Morin initially argued that the evidence did not support his conviction because he wasn’t there when Fleming was murdered and that there had been no plan to kill him.

In rejecting this argument, the Court pointed out that a felony-murder conviction requires neither of ...

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 upheld on appeal.

After the completion of his trial, the State subpoenaed him to testify at Waller’s murder trial. Delacruz attempted to invoke his Fifth Amendment right against self-incrimination, but the State advised the district court that it was granting him immunity for his testimony. According to the written grant of immunity, only use immunity was being granted, not both use and derivative use immunity.

Delacruz objected to the proffered grant of immunity as insufficient to protect his right against self-incrimination because his conviction was still on appeal, and the grant did not protect him from federal prosecution. The U.S. Attorney advised the State that no federal charges would be forthcoming because that would violate the Department of Justice’s Petite policy derived from Petite v. United States, 361 U.S. 529 (1960), which bars federal prosecution following a state prosecution for the same conduct.

Citing the grant of immunity ...

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 Lamin, who attempted to squelch the remarks by his fellow officers.

According to Trenton police officer Tim Miller, you have to go for the “major muscle groups,” referring to striking suspects with the large flashlight officers normally carry, to subdue them. Miller told fellow officer Gloria Garcia that to subdue suspects, you needed to use “veteran moves.”

Officer Lamin said, “I ain’t sending anyone to the hospital, bro,” reminding the other officers that he was recording everything on his bodycam.

Community activists were understandably unhappy about these comments, but Philip Stinson, who teaches criminal justice at Bowling Green State University said, “That’s the way police officers talk. It pulls back the curtain on the police subculture. It’s raw, ugly, violent.” These comments, he said, are “shockingly literal. They mean exactly what they’re saying.”

Community activist Darren Green said, “We’ve never had community policy. We’re seen ...

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 had a policy of pursuing trace drug cases as a ticketed misdemeanor, not a felony, as had been the previous district attorney’s policy. In justifying the policy change, she said the 2,000 to 4,000 trace amount cases generated each year, typically crack pipes containing a residue of cocaine, were wasting police officers’ time and clogging the courts. Now they won’t be prosecuted at all.

However, the true reason for declining to prosecute these types of cases has nothing to do with court congestion. Instead, Ogg is reportedly worried about police officer safety. The extremely dangerous narcotic fentanyl has become more common in Houston. It is so powerful that it can cause inadvertent overdoses in police simply by handling the drug while field testing. Police started to seek support in stopping the use of field test kits. Ogg’s solution was to stop prosecuting trace cases. Larger amounts of drugs ...

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 and cyberstalking. Relerford was accused of having engaged in a course of conduct and communications that he knew (or should have known) would cause his alleged victim to suffer emotional distress.

The conduct consisted of sending several emails following up on a job opportunity, waving at the alleged victim, showing up unbidden at the alleged victim’s place of work (where Relerford had also hoped to work), and posting an unintelligible rant on Facebook.

He was convicted of violating 720 ILCS 5/12-7.3(a) (stalking) and 720 ILCS 5/12-7.5(a) (cyberstalking). The relevant portions of the statutes read: “A person commits stalking [cyberstalking] when he or she knowingly engages in a course of conduct [using electronic communication] directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to: (1) fear for his or her safety ...

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 pay one dollar to be released from jail on bail.

But as Mary Akdemir, a writer for the Student Nation section of The Nation discovered, it’s not the dollar that is the problem. The dilemma associated with dollar bail is the process of successfully navigating the byzantine bureaucratic processes necessary to actually pay the dollar. According to Akdemir, “once someone is in jail, the process of bailing them out is extremely difficult, involving time-consuming travel, capricious security checks, and complicated paperwork.”

The difficulty of dealing with the administrative hurdles associated with one-dollar bail routinely results in the presumed innocent languishing in jail for days or even months. Akdemir notes that extended jail stays like these risk people’s jobs, homes, and sometimes, even their health. In one case, a one dollar-bail prevented a mother from attending her child’s funeral.

When New York University student Amanda Lawson learned of the existence ...

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 Smothers, and Thomas Hankton were sentenced, the district court gave them credit for time already served on related state charges prior to federal sentencing. The government did not object. However, the government — at the “eleventh hour” — backtracked and filed a motion under Federal Rule of Criminal Procedure 35(a) to “correct” their sentences in order to remove the credit for pre-federal sentencing custody. The district court granted the motion. All three appealed.

On appeal, the Court focused on Derrick’s sentence, as any ruling on his would affect all three. Derrick, like the others, had served a prior state sentence for a case related to his federal case, and the district court reduced his sentence to account for that state custody time. Under Rule 35(a), the court had just 14 days to “correct” any “clear error” in Derrick’s sentence. The government filed its motion on the 13th day ...

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 gear and wore face masks, concealing their identity. The occupants included a couple, their three daughters, and a nephew. The officers ordered all occupants to their knees at gunpoint. The Greers repeatedly asked to see the search warrant, but the officers refused to show it.

The officers were allegedly searching for a “dangerous Russian” named Vitaliy Strugach, who apparently lived at the Greers’ home more than a year prior to the search. Neither Strugach nor any contraband was present at the home.

The Greers filed a complaint with the police. In response, they finally obtained the underlying search warrant, which described their home as the location to be searched for drugs and items connected to drug trafficking as the items to be seized.

The Greers subsequently filed a lawsuit alleging the Highland Park police officers violated their Fourth Amendment rights by either serving an invalid search warrant or by improperly ...

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 half-brother Nicholas Ingram took a road trip to surprise Ingram’s mother for the holidays. When Ingram was pulled over for speeding, he consented to a search of the car, which turned up a gun under Ingram’s seat and less than a gram of marijuana in the console. Two bags of marijuana also were found hidden in the trunk. Both men waived their rights and talked to law enforcement. Ingram admitted the gun and marijuana were his and that Carver had no idea about the items. Carver admitted they talked about smoking marijuana over the holiday, but did not admit that he was aware of the marijuana in the trunk. Law enforcement assumed he was.

Ingram pleaded guilty, but Carver went to trial. Carver was found guilty of possession of marijuana and sentenced to six years in prison. His conviction was upheld on appeal.

Carver then appealed to the Mississippi Supreme ...

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 opposite strategy — being “smart on crime.”

Years of being tough on crime produced an electoral backlash, as Krasner was elected in a landslide. He promised widespread changes to the management of the DA’s office. Unlike many politicians who make promises to win election and promptly renege on them, Krasner apparently meant every word he said during his campaign.

His first week in office saw the firing of 31 assistant district attorneys, who apparently were not on board with the new policies and priorities.

According to Krasner’s spokesperson, “Change is never easy, but DA Krasner was given a clear mandate from the voters for transformational change.Today’s actions are necessary to achieve that agenda.”

The next step was putting the harsh light of publicity on 29 officers who were on a so-called “do not call list,” which The Intercept reported meant, “that they were so tainted ...

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 collected disciplinary records from 40 police departments in the Tri-State area and discovered that police officers who resign rather than face severe disciplinary action or termination are being hired by other police departments. Often the new department is lax on checking prior employment history and does not know about the previous disciplinary issues. Unfortunately, some of the officers continue the same practices that forced them out of their previous jobs.

WCPO found that some departments fail to do even the most basic of background checks. That’s what happened when the New Miami Police Department hired Joe Redmond, who avoided criminal charges by resigning his post as a Colerain Township police sergeant after he improperly used Ohio’s Law Enforcement Automated Data System (“LEADS”) to access information about his then-fiancée and a man who was dating one of his co-workers with whom he was also involved. That was criminal unauthorized use of ...

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), which ruled that criminal defense attorneys are ineffective when they fail to inform clients about the possible immigration consequences of pleading guilty. In practice, this means that criminal defendants in the Eighth Circuit may not collaterally attack a federal conviction on the basis of Padilla if they were convicted prior to the decision.

Roberto Barajas was convicted of knowingly possessing a stolen firearm in 2009, and after serving four months in prison, was deported. At the time of his conviction and sentence, it was an open question whether an attorney’s failure to advise a client of collateral consequences such as deportation could constitute ineffective assistance of counsel because Padilla had not yet been decided. After Padilla was issued, Barajas filed a petition for relief pursuant to 28 U.S.C. § 2255, in which he argued that his attorney provided ineffective assistance of counsel “by failing to inform him of ...

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 for the First Judicial District of Pennsylvania, “The risk-assessment tool is just one of 19 initiatives funded by the MacArthur grant to safely reduce Philadelphia County’s jail population while also reducing racial and ethnic disparities.”

“The goal with complementing a new risk tool is to reduce or eliminate cash bail,” said Michael Bouchard, director of pretrial services for the First Judicial District. “Once we have a risk tool and once we have a model with numbers, we’ll be able to allocate our resources in the pretrial arena to provide those that are more suited for community supervision than pretrial incarceration.”

“As with other initiatives, every effort will be made to reduce racial and ethnic disparities,” Roberts said. “To that end, the model, which is still being developed, will not include any information concerning race or Zip Code.”

Some criminal-justice reform advocates, however, are concerned that ...

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 give their local community a sense that they are in control.

While death sentences are portrayed as being carefully chosen and reserved solely for society’s worst offenders, the fact is that the vast majority of wrongful death convictions involve intellectually disabled defendants.

The New York-based Innocence Project reports that of its first 130 exonerations obtained by DNA evidence, 85 involved people making false confessions. Mental impairment is the common risk factor for false confessions. When you throw prosecutorial misconduct into the mix, the intellectually disabled meet the lethal intersection in the very place where justice is to prevail: the courtroom.

South Carolina authorities convicted Kenneth Simmons of the 1996 brutal murder and criminal sexual assault of an 89-year-old Summerville woman. In a post-conviction relief proceeding, the court vacated Simmons’ death sentence and imposed a life in prison without parole sentence because Simmons is intellectually disabled.

Intellectually disabled individuals are particularly ...

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 the U.S. population. Many privacy experts have expressed deep skepticism that the government and the courts have the ability to safeguard the constitutionally protected privacy rights of ordinary citizens.

A 2017 Pentagon memo reveals that “Project Maven” was designed to accelerate DoD’s integration of big data and machine learning, “turn the enormous volume of data available to DoD into actionable intelligence and insights at speed,” and improve drone targeting.

Google is performing the algorithmic warfare work through a company called ECS Federal, LLC, in Northern Virginia.

Google spokespersons acknowledged privacy concerns, stating, “The technology flags images for human review, and is for non-offensive uses only. Military use of machine learning naturally raises valid concerns. We’re actively discussing this important topic internally and with others as we continue to develop policies and safeguards around the development and use of our machine learning technologies.”

According to Center for New ...

$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 has led to an approach to criminalize purchasers of sex workers.

The money, given in the form of a series of annual non-profit grants from the group Demand Abolition, is at the center of an ongoing criminal court case in King County’s Superior Court (State of Washington v. Charles T. Peters, No. 16-C-00154-4-SEA). In that case, Judge John Chun will soon decide if the receipt of that money played an undue influence in the King County Prosecuting Attorney’s office decision to press charges against 13 individuals who purchased sex workers in the county. King County prosecutors handed charges those 13 for “promoting prostitution in the second degree,” a Class C felony. The Stranger reporter Sydney Brownstone pointed out that these charges had typically been used against pimps in the state, not purchasers of sex workers.

Money with Strings Attached

King County and other locales nationwide have not only received ...

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 of competing unions, became involved in a war of insults during contract negotiations. Burkert was a sergeant and the vice president of the Fraternal Order of Police, while Halton was a prison guard and the treasurer of the Policemen’s Benevolent Association.

Halton’s wife posted comments online in which she referred to Burkert as “fat,” and described one of his brothers as “quirky” and “kind of retarded.” Burkert retaliated by distributing flyers with pictures from the Haltons’ wedding over which he superimposed some highly inflammatory comments about the small size of Halton’s genitalia, as compared to the prisoners he supervised. Halton was so humiliated by the flyers, which were seen by multiple co-workers, that he went home and never returned to work.

In an illustration of the Alice in Wonderland nature of municipal law in New Jersey, Halton himself was able to charge Burkert with violation of New Jersey ...

$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.

After Jose Lopez texted an image of his erect penis with the message “Me in my glory” to a woman he had been pursuing, he was charged with indecent exposure, in violation of Iowa Code §709.9 and stalking—violation of protective order or injunction under §§ 708.11(2) and 708.11(3)(b)(1). A jury found him guilty of both counts. He was sentenced up to five years in prison for the stalking count and a determinate term of one year in jail and a special sentence of ten years for the indecent exposure conviction under § 903B.2. The court ordered all sentences to run consecutively. Lopez appealed, and the Iowa Supreme Court agreed to hear his case.

Before the Supreme Court, Lopez asserted, among other claims, that his trial counsel was ineffective for failing to challenge the sufficiency of the evidence supporting the indecent exposure charge ...

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 point, he was jumped by several people, including J.M., S.B, and B.C., who hit and kicked Carson while on the ground. One witness claimed that Carson had a gun, and people began running from the scene. Both J.M. and S.B. were fatally shot. The murder weapon was never recovered. A bloody knife was found near S.B.’s body, and a second bloody knife was recovered from the inside of his belt. Neither knife was tested for fingerprints or DNA. B.C. was shot, but he survived.

Carson was subsequently arrested and charged with two counts of second-degree murder and two counts of aggravated assault. He did not testify at trial. His primary defense was that he was not the shooter. However, he requested a self-defense instruction to the jury, which the trial court denied. The court reasoned that it could not give a self-defense ...

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 Mother Jones, “Under the revised state law, prosecutors must show that the defendant behaved in a way a ‘reasonable officer’ would not have in a similar situation. The change brings Washington’s deadly force law more in line with those of other states.”

Lisa Daugaard, director of the Washington nonprofit Public Defender Association, stated, “We understand that there’s no guarantee that anyone will be prosecuted under this law. It just removes the excuse for not actually taking that question on at face value.”

The question Daugaard said should be asked is, “Did the officer’s actions constitute a crime? If so, the prosecutor has the ability to bring criminal charges.... If prosecutors choose not to bring really egregious cases now, they will have to defend that—they will have to answer to the voters for those.”

According to a Seattle Times review, only one police officer faced criminal charges in ...

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.” According to NYPD Officer Pedro Serrano: “You take the truth and stretch it out a little bit.”

Officers take advantage of the fact that such a high percentage of criminal cases, especially with indigent defendants, generally end with a negotiated plea rather than a trial. As a result, many of the exaggerations and false statements are never subject to cross-examination and exposure, and the conduct carries over into the next case. However, the practice consists of more than just stretching the truth—it often crosses over into the more insidious practice of planting evidence, manufacturing testimony, and falsifying lineups.

The deceptive practices are taking place in an era when a majority of people have cellphone cameras, and few arrests or police encounters are not subject to some form of video recording. The widespread use of surveillance video on private and public premises, not to mention dashcam video and bodycams ...

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 positively about him and against Arias. Additionally, during this case, Martinez leaked information about a juror who did not vote in favor of a death sentence, plus he contacted another juror who was dismissed during the sentencing retrial. He received nude photos from her and asked for confidential information concerning what the jury had discussed. There’s been no thorough investigation of Martinez’ behavior since complaints have been presented to the bar association throughout the past few years. Critics of the State Bar of Arizona say there is a pattern of not holding Martinez accountable now and in the past, when concerns about his behavior also surfaced. The Attorney Discipline Probable Cause Committee will decide on sustaining the dismissal, overturning it, or requiring a more thorough investigation from the bar.

California: Pasadena police Lieutenant Vasken Gourdikian was arrested and charged on March 2, 2018, for illegally selling over 100 firearms from ...




 

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