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Prisoner Education Guide

Criminal Legal News: June, 2018

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Volume 1, Number 7

In this issue:

  1. Sex Offender Registries: Common Sense or Nonsense? (p 1)
  2. New York Times Investigation Spotlights NYPD Practice of ‘Testilying’ (p 11)
  3. Vague Criminality and Mass Incarceration: Will Dimaya End the Insanity? (p 12)
  4. U.S. Supreme Court Holds Residual Clause Definition of ‘Crime of Violence’ Unconstitutionally Vague Under Due Process Clause (p 14)
  5. Victory: Virginia Supreme Court Delivers Blow to Police Use of License Plate Reader Technology to Track Drivers, Surveil Citizens (p 16)
  6. Book Review: California Habeas Handbook 2.0 by Kent A. Russell (p 16)
  7. Habeas Hints: Understanding and Satisfying the Strickland Test for IAC (p 18)
  8. Pennsylvania Supreme Court Rules FBI Admission Microscopic Hair Analysis Wrong 90% of the Time is Newly Discovered Fact Allowing Untimely Post-Conviction Relief Petition (p 20)
  9. Drug-Induced Homicide Laws Hurt Rather Than Help Opioid Overdose Crisis (p 21)
  10. Coast to Coast, Sex Offender Residency Restrictions Waste Money, Create Havoc (p 22)
  11. ‘Broken Windows’ Policing Results in Police Lying About Unlawful Stops (p 22)
  12. Louisiana: No Charges for Cops Who Shot Alton Sterling, Despite Body-Cam Evidence (p 23)
  13. Captured: ‘Golden State Killer’ Wanted for 12 Murders and 50 Rapes Turns Out To Be Former Sacramento-Area Cop (p 24)
  14. ‘Shaken Baby Syndrome’ Diagnoses Discredited, Convictions Questioned (p 24)
  15. New Report: 60 Percent of Exonerations Stem from Official Misconduct (p 26)
  16. Washington High Court Issues New Rule Making Immigration Status Inadmissible (p 26)
  17. Colorado Supreme Court Limits Bottom End of Aggravated Sentencing Statute for Habitual Sex Offenders (p 27)
  18. D.C. Circuit Vacates Sentence Because Government Breached Plea Agreement by Providing Defendant’s Confidential Statements to Sentencing Court (p 28)
  19. Cautionary Tale: Visible Fingertips in Cellphone Pictures Can Get You Arrested (p 28)
  20. Innocence be Damned: Prosecutors Who Disregard Justice in Push to Win at Any Cost (p 30)
  21. Iowa Supreme Court Rules District Courts Have Authority to Hear Postconviction Relief Actions Involving Deprivation of Liberty or Property Interest (p 31)
  22. Ninth Circuit Reverses Drug Smuggling Conviction for Improper Exclusion of Evidence of Third-Party Culpability (p 32)
  23. Arizona Supreme Court: Trial Court Must Tell Jury Defendant Ineligible for Parole in Death Penalty Phase (p 32)
  24. Ohio Supreme Court Holds State Cannot Prove ‘Bulk Amount’ of Fentanyl Under Statute (p 33)
  25. U.S. Supreme Court Resolves Split Among Circuit Courts of Appeals on Tax Code § 7212(a) (p 34)
  26. U.S. Supreme Court: Death Penalty Case Involving Racist Juror Requires Further Consideration (p 34)
  27. The G-Men are Coming: Local Cops Partner with Federal Authorities to Deport Undocumented Immigrants (p 35)
  28. ‘Black Identity Extremists’ Added to FBI List of Domestic Terrorists (p 36)
  29. Colorado Supreme Court: Conviction of Drunk Motorist for Attempted Reckless Manslaughter and Attempted Second Degree Assault Requires Risk to Discernable Person, Not Merely Public At-Large (p 36)
  30. Federal Judge Excludes Evidence After FBI Lies on Search Warrant Affidavit, Geek Squad on FBI payroll (p 37)
  31. Fifth Circuit Holds Prisoner May Sign and Deliver Habeas-Related Motion on Behalf of Fellow Prisoner Under Prison Mailbox Rule (p 38)
  32. Fifth Circuit: 96-Day Pretrial Detention Without Appearance Before Judge or Chance to Post Bail Violates Fourteenth Amendment Due Process Rights (p 39)
  33. North Dakota Supreme Court Announces Interpretation of Restitution Statutes (p 40)
  34. Rhode Island High Court Abolishes Shatney in Initial Application for Postconviction Relief by Prisoners Serving Life Without Parole (p 40)
  35. ‘Serious Bodily Harm’ Does Not Include Animals, Massachusetts Supreme Court Holds (p 41)
  36. Georgia Supreme Court Vacates Convictions and Sentences Due to Merger Errors (p 41)
  37. News in Brief (p 42)
  38. Study: Unionized Police? Increased Misconduct (p 42)

Sex Offender Registries: Common Sense or Nonsense?

by Christopher Zoukis

In October 1989, 11-year-old Jacob Wetterling was kidnapped at gunpoint and never seen again.

When the boy’s mother, Patty Wetterling, learned that her home state of Minnesota did not have a database of possible suspects—notably convicted sex offenders—she set out to make a change.

Wetterling’s efforts led to the passage of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which was signed into federal law by President Bill Clinton in 1994. Jacob’s Law was the first effort to establish a nationwide registry of convicted sex offenders, but it was not the last.

Soon after Jacob’s Law was enacted, 7-year-old Megan Kanka was raped and murdered by a neighbor with a previous conviction for sexual assault of a child. This heinous crime led the state of New Jersey to pass Megan’s Law, which required anyone “convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sex offense” to register with local law enforcement upon release from prison, relocation into the state, or after a conviction that did not include incarceration.

Two years later, Congress enacted a federal Megan’s Law. The bill, which passed in the House by a 418-0 ...

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 ...

Vague Criminality and Mass Incarceration: Will Dimaya End the Insanity?

by Leah Litman, Harvard Law Review Blog

Today [April 17, 2018] the Supreme Court decided Sessions v. Dimaya and struck down the federal definition of “crime of violence” as unconstitutionally vague. The statute, section 16(b) (along with its very analogous cousin, section 924(c)), has meaningfully contributed to mass incarceration, racial disparities in sentencing, and excessive sentencing at the federal level. Dimaya recognized that section 16(b) did so in part through sprawling, amorphous phrasing that could be interpreted and applied in capricious and largely unbounded ways to expand the category of “crime of violence.” The impact of the Dimaya decision is potentially enormous, both for deportations (the case before the Court) and for criminal sentences.

The Court had done something similar in Johnson v. United States, holding the Armed Career Criminal Act’s residual clause unconstitutionally void for vagueness. Now Justice Kagan, writing for the majority in Dimaya, emphatically rejected the government’s plea to keep on keeping on in a futile attempt to try and give section 16(b) meaning:

“The Government would condemn us to repeat the past—to rerun the old ACCA tape, as though we remembered nothing from its first showing. But why should we disregard ...

U.S. Supreme Court Holds Residual Clause Definition of ‘Crime of Violence’ Unconstitutionally Vague Under Due Process Clause

by Dale Chappell

The U.S. Supreme Court struck yet another residual clause definition of “crime of violence” as unconstitutionally vague in a major decision that could potentially affect thousands of prisoners serving longer prison sentences for a conviction falling under this type of clause.

When the Government sought to deport James Dimaya after his second California burglary conviction, the Board of Immigration Appeals (“BIA”) determined that his first-degree burglary conviction was a “crime of violence” under the “substantial risk of the use of force” clause and therefore an “aggravated felony,” requiring his deportation pursuant to the Immigration and Nationality Act (“INA”).

The INA requires that any alien convicted of an “aggravated felony” must be deported. This includes a conviction for a “crime of violence,” as defined in 18 U.S.C. § 16. The statute’s definition of “crime of violence” is divided into two parts that are commonly known as the elements clause in § 16(a) and the residual clause in § 16(b), which was at issue in the present case.

The statute’s two parts cover: (a) an offense that has an element the use, attempted use, or threatened use of physical force against the ...

Victory: Virginia Supreme Court Delivers Blow to Police Use of License Plate Reader Technology to Track Drivers, Surveil Citizens

by The Rutherford Institute

RICHMOND, Va. — The Virginia Supreme Court has delivered a blow to the police’s use of Automated License Plate Readers (ALPRs) to surveil citizens and track drivers’ movements. The Rutherford Institute filed an amicus brief in Neal v. Fairfax County Police Department challenging the police practice of collecting and storing ALPR data as a violation of Virginia law that prohibits the government from amassing personal information about individuals, including their driving habits and location.

In reversing a lower court ruling that allowed state law enforcement agencies to extend the government’s web of surveillance on Americans by tracking them as they drive their cars, the Court held that the use of ALPRs involves the collection of personal information prohibited by Virginia’s Government Data Collection and Dissemination Practices Act. Mounted next to traffic lights or on police cars, ALPRs, which photograph up to 3,600 license tag numbers per minute, take a picture of every passing license tag number and store the tag number and the date, time, and location of the picture in a searchable database. The data is then shared with law enforcement, fusion centers and private companies and used to track the movements of persons ...

Book Review: California Habeas Handbook 2.0 by Kent A. Russell

Reviewed by Christopher Zoukis

The writ of habeas corpus is an extraordinary remedy that allows a person held against his or her will by the state to challenge the legality of confinement. It is often referred to as “The Great Writ,” and has its roots in common law going back hundreds of years. The U.S. Constitution forbids the suspension of the writ except in the case of rebellion or invasion.

The writ of habeas corpus has provided protection to citizens against improper restrictions on liberty. Despite its continued existence in American jurisprudence, the writ of habeas corpus has been heavily restrained over the last several decades. While prisoners may still use the writ to challenge confinement, procedural and substantive roadblocks present serious impediments to relief.

The chief curtailment of the writ came in the form of the federal law known as the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit referred to the AEDPA as “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a ...

Habeas Hints: Understanding and Satisfying the Strickland Test for IAC

by Kent Russell and Tara Hoveland, attorneys

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on state habeas corpus and on “AEDPA,” the federal habeas corpus law that now governs habeas corpus practice in courts throughout the United States.

INEFFECTIVE ASSISTANCE OF COUNSEL

Understanding and Satisfying the Strickland Test for IAC

The landmark case of Strickland v. Washington, 466 U.S. 668 (1984), establishes that ineffective assistance of counsel (“IAC”) claims require two showings: (1) Deficient Performance (What went wrong?); and (2) Prejudice (So what?). In this column, we’ll deconstruct these core requirements and give you guidance on how to satisfy them.

IAC: Deficient Performance

To show deficient performance pursuant to Strickland, your lawyer’s overall conduct of the defense must have fallen below “an objective standard of reasonableness ... under prevailing professional norms.” That is, your lawyer performed, contrary to your best interests, in a way that a reasonable lawyer would not have. To evaluate such a claim, the court will presume that your lawyer “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional ...

Pennsylvania Supreme Court Rules FBI Admission Microscopic Hair Analysis Wrong 90% of the Time is Newly Discovered Fact Allowing Untimely Post-Conviction Relief Petition

by Christopher Zoukis

The Pennsylvania Supreme Court allowed the post-conviction relief petition of a prisoner on death row to go forward to hearing based on a highly unusual “newly discovered fact,” viz., a 2015 FBI press release (“Press Release”) that admitted, for the first time, that microscopic hair analysis testimony from FBI forensic technicians contained errors in at least 90 percent of cases.

In 2002, David Chmiel was convicted and sentenced to death for three murders. At trial, Pennsylvania State Police Forensic Technician George Surma testified that two hairs retrieved from a mask found at the crime scene were “microscopically similar” to Chmiel’s hair. The prosecution relied on this evidence to convict Chmiel, saying in opening and closing that the hairs found at the crime scene were a “microscopic match.”

On June 18, 2015, Chmiel filed a post-conviction relief petition based on the press release and an April 18, 2015 Washington Post article (“Article”) about the press release, in which legal analysts characterized the FBI’s admission as “a watershed in one of the country’s largest forensic scandals, highlighting the failure of the nation’s courts for decades to keep bogus scientific information from juries.”

Chmiel acknowledged that his ...

Drug-Induced Homicide Laws Hurt Rather Than Help Opioid Overdose Crisis

by Dale Chappell

Lawmakers and prosecutors just don’t get it. Instead of treatment and prevention of opioid overdoses, lawmakers and prosecutors are pushing for more convictions under draconian drug-induced homicide laws in response to America’s deadly crisis. They claim it is to “send a strong message” to drug dealers.

In reality, the only “message” being heard, however, is not to call 911, lest you get charged in the death under the drug-induced homicide laws. Rather than targeting the major drug distributors as the laws were intended, prosecutors often charge friends and lovers of the victim, according to Health in Justice, an organization that opposes “criminalization of health and social problems” and tracks punitive drug policies. “Fewer than half of the cases we analyzed involved a traditional buyer/seller relationship,” noted Leo Beletsky, lead investigator at Health in Justice and associate professor of law and health sciences at Northeastern University.

“Drug-induced homicide is couched as a way to respond to the overdose crisis, but prosecutors are not held accountable for proving whether these laws are effective,” said Lindsay LaSalle, senior staff attorney at the Drug Policy Alliance, a New York-based nonprofit. “There is not a shred of evidence that ...

Coast to Coast, Sex Offender Residency Restrictions Waste Money, Create Havoc

by Sandy Rozek

If every shred of evidence showed that traffic lights, while costing large amounts of resources to install, did nothing to decrease auto accidents and actually created a host of undesirable consequences, would cities still install them at every major intersection?

This is exactly what happens with the creation of what are euphemistically called “child safety zones.”

The emergence of sex-offender registration and notification laws in the mid-1990s created awareness of convicted sexual offenders living throughout communities and neighborhoods. This led to the notion that restricting these individuals from living (and often from just being) within close proximity to areas where children congregate would help prevent the sexual victimization of children. Today, 35 states have statewide residency restrictions, and many of the others allow individual jurisdictions to establish them.

This ignores the most basic fact about child molestation, a fact that has long been known but largely ignored: Children are not sexually abused by strangers lurking in parks and school playgrounds. Virtually all molestation of children is committed by those in the children’s lives in trusted positions, the majority in private residences.

The clamor for residency restrictions

Every month, new communities demand the creation of these “protected” ...

‘Broken Windows’ Policing Results in Police Lying About Unlawful Stops

by Matt Clarke

“Broken windows” policing has not been linked to a reduction in serious crime, but it has been linked to an increase in police lying. “Broken windows” policing is based on the belief that aggressive police enforcement of minor criminal violations—such as trespassing, possession of marijuana, or using public transportation without paying—causes a decrease in serious crimes.

To show an increase in enforcement, the arrest rate has to go up, so police officers are told to arrest more citizens. Some are even given daily quotas of arrests to make. A 2016 report by the NYPD’s Office of Inspector General found “no empirical evidence demonstrating a clear and direct link between an increase in summons and misdemeanor arrest activity and a related drop in felony crime.” Nonetheless, “broken windows” policing remains NYPD policy.

A vigilant officer might simply pay more attention to what is going on and pursue even the most minor of offenders. However, this would not ensure that the officer made the necessary quota of arrests.

The lazy and more common approach used by police under the “broken windows” policy is simply to lie. If you stop someone, frisk that person, and find an illegal knife ...

Louisiana: No Charges for Cops Who Shot Alton Sterling, Despite Body-Cam Evidence

by Monte McCoin

Two white police officers who were involved in the 2016 death of an unarmed black man at a Baton Rouge convenience store were disciplined, but not criminally charged, for their roles in the incident, despite body-cam video evidence that appears to show the use of excessive force.

Although Alton Sterling’s death by police shooting was captured by at least six video sources, including footage from Baton Rouge Police Officers Blane Salamoni and Howie Lake II’s body-worn cameras.

On March 27, 2018, Louisiana Attorney General Jeff Landry announced that no state charges would be filed against the pair for their roles in Sterling’s death. “This decision was not taken lightly,” Landry said. “We came to this conclusion after countless hours of reviewing the evidence.” Federal prosecutors previously declined to press charges in May 2017.

The two officers had separate disciplinary hearings on March 30, 2018. Salamoni was fired for violating use-of-force policies, while Lake was suspended for three days without pay for “losing his temper” during the incident.

The same day, video footage was released to the public on what Sterling family attorney L. Chris Stewart called “a day for truth.” Stewart clarified, “And what ...

Captured: ‘Golden State Killer’ Wanted for 12 Murders and 50 Rapes Turns Out To Be Former Sacramento-Area Cop

by Derek Gilna

DNA testing and some apparent good breaks in a decades-long investigation paid off when police officers executed an arrest warrant on former Auburn, California, police officer Joseph James DeAngelo on April 24, 2018.

DeAngelo, now 72, is accused of being the notorious “Golden State Killer,” who is believed to be responsible for at least 12 murders, 50 rapes, and 100 burglaries between 1974 and 1986, some of which might have been committed while he was an officer sworn to protect the public.

The accused former cop was fired from the police department of the small Sacramento suburb for stealing dog repellent and a hammer from a drugstore, but appeared to be on investigator’s radar for apparent erratic behavior. The armed attacks, which terrorized parts of central and southern California, were marked by extreme and often sadistic violence and sexual assaults that preceded armed robberies. The attacks produced thousands of leads but no results for decades.

Investigators apparently reactivated the case in 2016. According to District Attorney Anne Marie Schubert, “We knew we were looking for a needle in a haystack, but we also knew that needle was there. We found the needle in the haystack, and ...

‘Shaken Baby Syndrome’ Diagnoses Discredited, Convictions Questioned

by Matthew Clarke

The term “junk science” does not quite cover the revolution in our understanding of the diagnosis of shaken baby syndrome. Medical experts now know that their belief in how to diagnose a clear sign of child abuse based upon a determination of shaken baby syndrome was mistaken. This new understanding may cast doubt on hundreds of murder, assault, and child abuse convictions.

In the 1970s, pediatric neurosurgeon Dr. Norman Guthkelch advanced the hypothesis that babies showing a certain pattern of injuries had been violently shaken. He thought he was on solid scientific footing. He adamantly believed that such babies—especially those with the so-call “triad” of brain swelling, together with bleeding on the brain’s surface and behind the retinas—were victims of abuse even if there were no outward signs of injury. “Shaken baby syndrome” soon became a medical consensus. In court, it was accepted as a scientific fact and used to convict hundreds of defendants.

However, over the past two decades, newer scientific research has proven that accidents, diseases, and genetic conditions can cause the damning triad and other symptoms associated with shaken baby syndrome. This has undermined faith in the credibility of a shaken baby syndrome diagnosis ...

New Report: 60 Percent of Exonerations Stem from Official Misconduct

by Steve Horn

The newly released 2017 edition of the National Registry of Exonerations report delivers big findings about the work done by conviction integrity units (“CIUs”), innocence projects, and what some legal experts refer to as the “two-tiered” criminal justice system.

Put together by the University of Michigan Law School, the Michigan State University College of Law, and the University of California-Irvine, the report has concluded that the work done by CIUs and innocence projects across the country has helped move the meter in the area of wrongful convictions.

But the report also points to a number which, to some, is troubling. That is, a record-high 84 official misconduct exonerations – or exonerations given because of official misconduct committed by those vested with the power of the law, such as police officers, prosecutors, and governmental officials – were given in 2017 nationwide. That’s 84 out of the 139 total exonerations, or about 60 percent, recorded by the Registry of Exonerations in 2017.

“Official misconduct encompasses a wide range of behavior — from police officers threatening witnesses, to forensic analysts falsifying test results, to child welfare workers pressuring children to claim sexual abuse where none occurred,” details the report ...

Washington High Court Issues New Rule Making Immigration Status Inadmissible

by Derek Gilna

The Washington Supreme Court on November 8, 2017, issued a new rule of evidence, making it “generally inadmissible” in both criminal and civil cases to question a party’s immigration status. According to the Court, “evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness.”

The Court’s newest order follows in the footsteps of a precedent established in 2010, in which the Court set aside a trial verdict adverse to an individual who had suffered a serious personal injury, but had overstayed his visa. When the case was retried with the immigration information excluded, he was awarded $2.6 million

As noted by the Court, “Whenever a party seeks to use or introduce immigration status evidence, the court shall conduct an in camera review of such evidence. The motion, related papers, and record of such review may be sealed pursuant to GR 15 and shall remain under seal unless the court orders otherwise. If the court determines that the evidence ...

Colorado Supreme Court Limits Bottom End of Aggravated Sentencing Statute for Habitual Sex Offenders

by Christopher Zoukis

The Supreme Court of Colorado ordered that a habitual sex offender be resentenced because the trial court miscalculated the bottom end of the defendant’s sentence. The December 18, 2017, opinion clarified that there is an upper limit on the minimum end of a habitual sex offender’s sentence.

Ervin Isom was convicted of sexual assault on a child and adjudicated a habitual sex offender against children. The trial court sentenced him to an indeterminate prison term of 40 years to life. Isom appealed the sentence, arguing that it was illegal because the trial judge had concluded that there was no upper limit on the minimum portion of his sentence.

The court of appeals agreed, concluding that 36 years to life was the maximum permissible sentence.

The court of appeals noted that the statute governing aggravated sentences for habitual sex offenders, C.R.S. 18-1.3-1004(1)(c) (“Statute”), does not appear to prescribe a maximum at the bottom end of an enhanced, indeterminate sentence. The Colorado Supreme Court granted certiorari and affirmed.

Colorado uses an indeterminate sentencing scheme for felonies, including sex offenses. This requires a court, pursuant to statutory sentencing provisions, to set a minimum and maximum ...

D.C. Circuit Vacates Sentence Because Government Breached Plea Agreement by Providing Defendant’s Confidential Statements to Sentencing Court

by Dale Chappell

The government’s use of incriminating statements made by a defendant at a confidential debriefing breached the plea agreement and constituted “plain error” when the government disclosed that information to the sentencing court to push for a longer sentence, the U.S. Court of Appeals for the D.C. Circuit held.

Kamal King-Gore was arrested on June 10, 2010, for selling 60.6 grams of cocaine base to a confidential informant. After being indicted, he met with prosecutors in a voluntary, off-the-record debriefing. In a written agreement, prosecutors promised that “no statements made by or other information provided by” him would “be used directly against [him] in any criminal proceeding.”

He subsequently pleaded guilty. At sentencing, despite its promise not use any statements or information obtained during the debriefing, the government told the sentencing court that King-Gore was a major drug “wholesaler” responsible for more drugs than the court knew. The term “wholesaler” was used by King-Gore during the debriefing to describe himself. The court sentenced King-Gore to well above the mandatory minimum sentence.

He appealed the government’s breach of the agreement. On appeal, the government admitted it breached the agreement, but argued that it did not ...

Cautionary Tale: Visible Fingertips in Cellphone Pictures Can Get You Arrested

by Steve Horn

For those in the U.S. who enjoy taking photos on their cellphones, particularly of illicit activities or potentially illegal ones, the South Wales Police force has sent a warning shot across the Atlantic to beware. Or else.

In March in South Wales, U.K., a kingpin of a cannabis and ecstasy trafficking ring was arrested after photos of ecstacy which he took on his cellphone and sent in a text message on WhatsApp were traced back to him via his fingerprint marks that could be seen on enlarged images of that photo. In total, 11 people were arrested as members of the ring.

In South Wales, law enforcement officials there said it was the first time this particular technique had been used to support an arrest. It is an investigation which began with neighbors calling to say it appeared that suspicious activity was occurring at a house with more-than-normal foot traffic coming into and out of it. And the arrest phase of it has ended with the tracking down of the 28-year-old leader of the pack, Elliot Morris.

Dave Thomas, forensic operations manager at the Scientific Support Unit, said in a press release put out by ...

Innocence be Damned: Prosecutors Who Disregard Justice in Push to Win at Any Cost

by Dale Chappell

The prosecutor’s goal “is not that it shall win a case, but that justice shall be done,” the U.S. Supreme Court declared in Berger v. United States, 295 U.S. 78 (1935). Some prosecutors, however, are clearly not guided by the high court’s admonition; on the contrary, they believe that their job is to win—at any cost.

Over the last 25 years, more than 2,150 prisoners have been proven innocent. Barry Scheck and Peter Neufeld’s Innocence Project has freed more than 200 of them since its creation in 1992, while other organizations spawned from their project have freed many others wrongfully imprisoned.

Inexplicably, some prosecutors fight to keep even those proven factually innocent behind bars. These prosecutors do not merely delay justice; they actively work against it. When a prisoner is exonerated by a court, these prosecutors file appeal after appeal, or indict the exoneree all over again, instead of trying to find the actual perpetrator.

When Davontae Sanford was 14 years old, he confessed after a late-night interrogation to murdering four people in a Detroit drug house. Sanford said he was told by cops that he could go home if he gave them ...

Iowa Supreme Court Rules District Courts Have Authority to Hear Postconviction Relief Actions Involving Deprivation of Liberty or Property Interest

by David Reutter

The Supreme Court of Iowa held that a motion for postconviction relief is the proper vehicle to challenge a substantial deprivation of liberty or property interest in certain Iowa Department of Corrections (“IDOC”) administrative actions.

In 1990, Kevin Franklin pleaded guilty to second-degree murder and second-degree sexual abuse for which he received 50 and 25 years, respectively. He has been eligible for parole since 2012.

Franklin filed a postconviction relief motion alleging he was unlawfully held in custody or other restraint — language consistent with Iowa Code § 822.2 (1)(e). He also filed a motion to correct an illegal sentence. In both motions, Franklin alleged that the IDOC required him to complete Sex Offender Treatment Program (“SOTP”) yet continually denied his request to participate. The IDOC practice of withholding SOTP until an offender is within three years of discharge artificially lengthened his sentence and effectively removed any meaningful chance of parole or work release. The parole board would not consider any relief until the completion of SOTP.

The district court combined both of these motions into one postconviction motion, and the State moved for summary judgment, arguing that this was better characterized as a parole ...

Ninth Circuit Reverses Drug Smuggling Conviction for Improper Exclusion of Evidence of Third-Party Culpability

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit reversed a defendant’s conviction for importation of methamphetamine because the district court improperly excluded relevant evidence that someone else committed the crime.

Angelica Urias Espinoza, a citizen of Mexico, ran a business in which she imported clothing from the United States for sale in Mexico. Because the business required regular border crossings, Urias Espinoza obtained a border crossing card that allowed her to legally enter the United States. She made 14 such border crossings between February 27, 2015 and late April, 2015.

On April 22, 2015, U.S. Customs and Border Patrol agents detained Urias Espinoza as she attempted to legally enter the United States. Agents Tan and Wallis suspected that the car contained hidden drugs. A brief search revealed a suspicious bulge in the back seat of the car. When the back seat was opened, the agents discovered 12 kilograms of methamphetamine.

Urias Espinoza was arrested and charged with importing methamphetamine in violation of 21 U.S.C. §§ 952 and 960. At trial, she presented the “some other dude did it” defense. Specifically, Urias Espinoza attempted to introduce evidence that she did not know the ...

Arizona Supreme Court: Trial Court Must Tell Jury Defendant Ineligible for Parole in Death Penalty Phase

by Dale Chappell

The trial court erred by failing to tell the jury that a defendant was ineligible for parole before its decision to impose the death penalty, the Supreme Court of Arizona held November 6, 2017.

A jury found Jasper Rushing guilty of killing his cellmate at the Lewis Prison Complex in September 2010. The evidence showed Rushing “smashed in” his cellmate’s face, cut his throat, and severed his penis before he told guards, “I think I just killed my cellie.” He was charged with premeditated first-degree murder, and the State sought the death penalty. The jury found Rushing guilty of murdering his cellmate in an “especially heinous or depraved manner,” an aggravating factor under Arizona law to allow the death penalty.

On appeal, one of Rushing’s arguments was that the trial court violated his constitutional rights by refusing to instruct the jury during the penalty phase that he was ineligible for parole because his crime was committed after January 1, 1994, making him ineligible for parole under Arizona law.

The U.S. Supreme Court held in Simmons v. South Carolina, 512 U.S. 154 (1994), that when a jury is determining whether to impose the death ...

Ohio Supreme Court Holds State Cannot Prove ‘Bulk Amount’ of Fentanyl Under Statute

by Dale Chappell

Because no standard pharmaceutical reference manual specifies a maximum daily dose in the usual dose range for fentanyl, a defendant’s conviction for aggravated possession of a “bulk amount” of the drug could not stand, the Supreme Court of Ohio held January 4, 2018.

Mark Pountney was charged with multiple offenses, including possession of 10 three-day transversal fentanyl patches, and the State sought an enhanced felony level of aggravated possession based on the amount of the drug involved. That is, the State argued that he possessed a “bulk amount” of fentanyl, a second-degree felony given the amount of the drug in his possession.

After a bench trial on the fentanyl charge, Pountney was convicted and sentenced to three years in prison after pleading guilty to the other counts. He appealed.

On appeal, Poultney argued that the State failed to present sufficient evidence that he had possessed at least five times the “bulk amount” of fentanyl under R.C. 2925.01(D)(1)(d), which is a second-degree felony under R.C. 2925.11(C)(1)(c). The court of appeals agreed and reduced his conviction to a fifth-degree felony. The State appealed to the Ohio Supreme Court, which ...

U.S. Supreme Court Resolves Split Among Circuit Courts of Appeals on Tax Code § 7212(a)

by Richard Resch

The Supreme Court of the United States reversed a defendant’s conviction for violating the second clause of 26 U.S.C.S. § 7212(a) (“Omnibus Clause”). In doing so, the Court announced the requirements for a conviction under the criminal tax statute, resolving a split among the United States Courts of Appeals.  

Between 2004 and 2009, the IRS opened and closed multiple investigations into the tax activities of Carlo Marinello. In 2012, the Government indicted him for several violations of various criminal tax statutes, including the Omnibus Clause. It forbids “corruptly or by force or threats of force (including any threatening letter or communication) obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration” of the Internal Revenue Code.

To be convicted of violating the Omnibus Clause, the defendant must have engaged in at least one of eight enumerated activities. The Government accused Marinello of engaging in five of the eight activities: (1) failing to maintain corporate books and records, (2) failing to provide complete and accurate tax information to tax accountant, (3) destroying business records, (4) hiding income, and (5) paying employees with cash.

At trial, the judge instructed ...

U.S. Supreme Court: Death Penalty Case Involving Racist Juror Requires Further Consideration

by Christopher Zoukis

In a brief per curiam opinion, the United States Supreme Court vacated an Eleventh Circuit Court of Appeals decision that foreclosed potential relief for a prisoner on death row whose conviction may have been influenced by a racist juror.

The January 8, 2018, opinion allowed Keith Tharpe’s habeas corpus petition to proceed. Tharpe, who has been on Georgia’s death row for over two decades, was convicted of the 1991 murder of his estranged wife’s sister, Jaquelin Freeman.

Tharpe’s claim rested on an affidavit signed by juror Barney Gattie, in which he explained the reasoning underlying his decisions in the jury room. According to the affidavit, Gattie (who is white) drew a distinction between Tharpe and Freeman, both of whom are black.

“The Freemans are what I would call a nice Black family,” wrote Gattie. “In my experience I have observed that there are two types of black people. 1. Black folks and 2. N*****s.”

Gattie went on to say that Tharpe “who wasn’t in the ‘good’ black folks category in my book should get the electric chair for what he did,” and that “[a]fter studying the Bible, I have wondered if ...

The G-Men are Coming: Local Cops Partner with Federal Authorities to Deport Undocumented Immigrants

by Christopher Zoukis

Donald Trump spoke ill of the undocumented immigrant population during his run for president and promised to ramp up deportation efforts if elected. As president, he is making good on his campaign promise.

According to Reuters, the U.S. Department of Homeland Security (“DHS”) has greatly increased its use of so-called 287(g) agreements with state and local authorities. These agreements, authorized by the Immigration and Nationality Act, essentially deputize local law enforcement officers to perform some federal immigration duties, such as checking immigration status and issuing federal immigration detainers.

A Mother Jones report indicates that while this activity has been limited since 2012 to a “jail enforcement” model, which allows deputized officers to “interrogate arrested individuals about their immigration status and issue immigration detainers on inmates,” the new DHS directive expanding the program also contemplates greater use of the “task force officer” model. This controversial method, used heavily by former Sheriff Joe Arpaio of Maricopa County, Arizona, allows police to question and arrest anyone they suspect to be undocumented.

The Reuters investigation uncovered documents revealing that DHS has reached out to “scores” of state and local agencies about entering into 287(g) agreements.

“It fits ...

‘Black Identity Extremists’ Added to FBI List of Domestic Terrorists

by Christopher Zoukis

An FBI report published in August 2017, and leaked two months later, identified a movement it refers to as “black identity extremists” as a new addition to the growing number of groups the agency considers possible domestic terrorists.

According to McClatchyDC.com, the report defines black identity extremists as individuals who, in response to “perceived racism and injustice in American society,” seek to use force or violence, sometimes in furtherance of “establishing a separate black homestead or autonomous black social institutions, communities or governing organizations within the United States.” In addition, the report claims that black identity extremists engage in “premeditated, retaliatory lethal violence against law enforcement.”

This label, combined with the overly broad definition of domestic terrorism in the USA PATRIOT Act, could lead to “abusive and unjustified investigations,” said American Civil Liberties Union National Security Project Director Hina Shamsi.

“We are worried that protestors are increasingly being labeled as terrorism threats,” said Shamsi.

Shamsi’s concerns may be well-founded. A letter from 84 members of Congress to the U.S. Department of Justice requests that Dakota Access Pipeline protestors be labeled as domestic terrorists. While the designation is not necessarily a ...

Colorado Supreme Court: Conviction of Drunk Motorist for Attempted Reckless Manslaughter and Attempted Second Degree Assault Requires Risk to Discernable Person, Not Merely Public At-Large

by Christopher Zoukis

The Colorado Supreme Court struck down the convictions of a habitual drunk driver because the convictions — one for attempted reckless manslaughter and one for attempted second-degree assault — required that an actual, discernable person be placed at risk, and the evidence did not establish that fact. The January 22, 2018, opinion upheld an appellate court ruling that the convictions must be dismissed.

Isidore Griego had a long history of DUI arrests. On December 26, 2005, he was followed for several miles by Arapahoe County Officer Dan Hyde. While following Griego, Hyde observed him swerve across the center line, onto the shoulder, and into a ditch.

After Griego ran over a street sign, went through a red light, and hit a curb in an apartment complex, Hyde pulled him over. He smelled a strong odor of alcohol, and noted that Griego’s speech was slurred to the point of being incomprehensible. The only other vehicle on the road during the episode was a car traveling in the opposite direction, but Griego’s car never got closer than about 100 to 150 feet. Hyde determined that Griego’s vehicle “was never an imminent danger to [the other car]” and that ...

Federal Judge Excludes Evidence After FBI Lies on Search Warrant Affidavit, Geek Squad on FBI payroll

by Matt Clarke

The federal child pornography case against a California doctor was dismissed after the judge excluded all the evidence seized from his home because an FBI agent lied on the affidavit supporting the search warrant for his home, falsely claiming technicians working on the doctor’s computer had discovered child pornography.

Oncologist Dr. Mark Rettenmaier brought a computer to the Geek Squad at Best Buy for repair. It was sent to the company’s central repair facility in Kentucky. There, technicians discovered a photo of a naked girl in the unallocated space of the computer’s hard drive. The photo did not depict a sex act or show the approximately 9-year-old girl’s genitalia. The technicians had an agreement with the FBI office in Louisville in which they were paid each time they tipped the FBI to child pornography on computers they repaired, so they reported the photo.

FBI Special Agent Cynthia Kayle prepared an affidavit for a search warrant of Rettenmaier’s home falsely stating that the image found was child pornography, and not mentioning that it was found in the unallocated space or that the FBI paid the Geek Squad technicians who reported it. Unallocated space is where portions of deleted ...

Fifth Circuit Holds Prisoner May Sign and Deliver Habeas-Related Motion on Behalf of Fellow Prisoner Under Prison Mailbox Rule

by Dale Chappell

A prisoner may sign and deliver a habeas-related motion to prison officials for timely mailing under the “prison mailbox rule” on behalf of another prisoner, the U.S. Court of Appeals for the Fifth Circuit held on January 12, 2018.

After the U.S. District Court for the Northern District of Texas denied John Uranga’s habeas corpus petition under 28 U.S.C. § 2254, challenging his life sentence in state prison for possessing less than 4 grams of methamphetamine as a habitual felony offender—a fellow prisoner helping him with his petition signed Uranga’s name on his behalf and mailed a motion to “reconsider” the court’s judgment under Federal Rule of Civil Procedure 59(e). This was to ensure Uranga would meet the deadline for filing since the prison was on lockdown. The district court denied Uranga’s motion as untimely filed, and he appealed.

On appeal, there were several issues. The first issue was whether Uranga’s Rule 59(e) motion was timely filed to toll the time to appeal. The next issue was whether the motion was actually an improper “successive” habeas petition. The final issue was whether Uranga was entitled to relief on the actual claim ...

Fifth Circuit: 96-Day Pretrial Detention Without Appearance Before Judge or Chance to Post Bail Violates Fourteenth Amendment Due Process Rights

by Matt Clarke

On October 24, 2017, the U.S. Court of Appeals for the Fifth Circuit held that an indicted Mississippi pre-trial detainee’s Fourteenth Amendment due process rights were violated when she was held for 96 days without appearing before a judge or having an opportunity to post bail.

Jessica Jauch was indicted for sale of a Schedule IV controlled substance based upon the word of a confidential informant. The Circuit Clerk of Choctaw County, Mississippi, issued a capias that was served on her after she was arrested for misdemeanor traffic tickets. She quickly cleared the traffic tickets. She was still held in jail, and her requests to be brought before a judge and allowed to post bail denied because Sheriff Cloyd Halford had a policy that felony arrestees be detained until the next term of the Circuit Court.

Finally, 96 days after her arrest, Jauch was appointed counsel and had bail and a trial date set. Six days later, she posted bail. Within four weeks, the prosecutor reviewed the evidence and promptly moved to dismiss the charges. It was uncontested that Jauch was innocent of the drug charges.

Jauch filed a federal civil-rights action against Sheriff Halford and ...

North Dakota Supreme Court Announces Interpretation of Restitution Statutes

by Christopher Zoukis

The North Dakota Supreme Court reversed a criminal restitution order because the trial judge misapplied statutory and constitutional law in determining the amount ordered.

On February 27, 2017, Lukas Kostelecky was arrested for criminal mischief, a Class C felony, after damaging a copy machine at New Town High School. He pleaded guilty to criminal mischief, a Class A misdemeanor, and was ordered to pay $3,790 in restitution to the New Town school district.

At the restitution hearing, the state presented a quote of $3,790 to replace the copier. The quote also noted that the depreciated value of the machine was $400. Kostelecky presented evidence that a refurbished copier would cost between $1,111 and $1,795. When ordering the $3,790 in restitution, the trial court judge said, “Now, if, in fact, that makes the school district beyond whole, I can’t make that determination . . . [but] that was the amount that was expended to replace the item that was damaged and ultimately destroyed by Mr. Kostelecky.”

Kostelecky appealed, arguing that “restitution does not mean the victim is entitled to buy newer, more expensive items.” After reviewing state law, as well as a 2016 addition ...

Rhode Island High Court Abolishes Shatney in Initial Application for Postconviction Relief by Prisoners Serving Life Without Parole

by Matt Clarke

On December 5, 2017, the Supreme Court of Rhode Island held that, “from this point forward, Shatney v. State, 755 A.2d 130 (R.I. 2000), shall be deemed abrogated and inapplicable in any case involving both an initial application for postconviction relief and an applicant who has been sentenced to life without the possibility of parole.”

It further held that the Shatney hearing given to a prisoner sentenced to life without the possibility of parole (“LWOP”) had not been sufficient to qualify as the evidentiary hearing the court had previously required for prisoners serving LWOP on first application for postconviction relief pursuant to Tassone v. State, 42 A.3d 1277 (R.I. 2012). That is, Tassone mandates that prisoners serving LWOP receive an evidentiary hearing on the merits with respect to the first application for postconviction relief.

Jeremy Motyka, a Rhode Island prisoner serving LWOP, filed his first application for postconviction relief, which was denied. He appealed, and the Rhode Island Supreme Court vacated the superior court’s judgment after the State conceded that the hearing justice failed to follow the procedure set forth in Shatney for a hearing on withdrawal of court-appointed counsel.

On remand ...

‘Serious Bodily Harm’ Does Not Include Animals, Massachusetts Supreme Court Holds

by Dale Chappell

The term “serious bodily harm” does not include harm to animals, unless the statute expressly says so, the Supreme Judicial Court of Massachusetts held, tossing out a youthful offender indictment.

After a 14-year-old juvenile tortured a dog, the Commonwealth indicted him as a youthful offender for cruelty to animals and bestiality under G.L.c. 272, §§ 34, 77. The juvenile court granted the juvenile’s motion to dismiss the indictment because the term serious bodily harm in the youthful offender statute does not include animals. The Commonwealth appealed, and the Massachusetts Supreme Court took the case sua sponte from the Court of Appeals.

A juvenile may be tried as a youthful offender, which includes adult prison time, if the crime would have included prison if he were an adult and he was previously committed under youth services, or if the crime involved serious bodily harm, the Court explained. The question here was whether the term “serious bodily harm” applies only to humans.

Canvassing the Commonwealth’s statutes, the Court concluded that the Legislature expressly included the term “animals” when it wanted the statute to cover or apply to animals. In fact, the Legislature has done so “directly and ...

Georgia Supreme Court Vacates Convictions and Sentences Due to Merger Errors

by Matt Clarke

On December 11, 2017, the Supreme Court of Georgia vacated convictions and sentences for aggravated assault and firearms possession due to a merger error.

Thyrell Depree Donaldson, a Georgia state prisoner, appealed his convictions for felony murder, aggravated assault, and two counts of firearms possession, all in connection with the shooting death of Robert White Jr. The Supreme Court overruled the grounds Donaldson raised, but found two merger errors in his sentencing that he had not raised on appeal.

Donaldson was convicted of firing two shots at White, who was sitting atop the stairs outside Donaldson’s apartment. One bullet missed, but the other one struck White in the back, severing his spinal cord and perforating his aorta. As a result, he could not move his legs and died shortly thereafter due to blood loss.

Donaldson was indicted on six counts: malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault for shooting White in the back (Count 3), aggravated assault for shooting at White and missing (Count 4), possession of a firearm during the commission of a felony (murder) (Count 5), and possession of a firearm during the commission of a felony (aggravated ...

News in Brief

Arkansas: The taxpayers of Walnut Ridge, Arkansas, face a lawsuit that was filed in response to a video-taped incident of unlawful detention, assault, deprivation of rights and, eventually, conspiracy carried out by police officer Matthew Mercado in December 2016. Railroad worker Adam Finley was stopped by Mercado while working at a railroad crossing for Burlington Northern Santa Fe Railroad and asked why he was there. After ordering Finley out of the vehicle, Mercado pushed him, cursed at him, and handcuffed him, detaining Finley briefly before telling him he would “ride the lightning,” next time. When Finley filed a complaint with the Walnut Ridge Police Department, he was cited for refusal to submit and obstructing governmental operations, which the suit described as a ploy to cover up the incident. On April 3, 2018, Finley was acquitted of all charges in Lawrence County District Court. The lawsuit remains pending.

Alabama: William Jeffrey West, 44, entered a not-guilty plea on April 10, 2018, to charges that he killed his wife, 42-year-old Kathleen Dawn West, with a blow to the head from an absinthe bottle. Prosecutors say her blood and her husband’s fingerprints were found on the bottle. “We have a very strong ...

Study: Unionized Police? Increased Misconduct

by Derek Gilna

According to a December 2017 study by University of Chicago Law School researchers, data from Florida indicates 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 ...




 

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