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A Night To Remember

Criminal Legal News: June, 2018

Issue PDF
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. 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: Death Penalty Case Involving Racist Juror Requires Further Consideration (p 34)
  26. U.S. Supreme Court Resolves Split Among Circuit Courts of Appeals on Tax Code § 7212(a) (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. Georgia Supreme Court Vacates Convictions and Sentences Due to Merger Errors (p 41)
  36. ‘Serious Bodily Harm’ Does Not Include Animals, Massachusetts Supreme Court Holds (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 ...

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.” ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

‘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 ...

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. ...

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 ...

‘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. ...

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 ...

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 ...

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

‘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 ...

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

‘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 ...

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 ...

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 ...

 

 

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