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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. Book Review: California Habeas Handbook 2.0 by Kent A. Russell (p 16)
  6. Victory: Virginia Supreme Court Delivers Blow to Police Use of License Plate Reader Technology to Track Drivers, Surveil Citizens (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. ‘Broken Windows’ Policing Results in Police Lying About Unlawful Stops (p 22)
  11. Coast to Coast, Sex Offender Residency Restrictions Waste Money, Create Havoc (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. News in Brief (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 ...

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 ...

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 ...

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.


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 ...

‘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 ...

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” ...

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 ...

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 ...


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