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Prisoner Education Guide

Criminal Legal News: July, 2018

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Volume 1, Number 8

In this issue:

  1. Cell-Site Simulators: Police Use Military Technology to Reach out and Spy on You (p 1)
  2. SCOTUS Adopts ‘Look Through’ Methodology for Federal Courts in Determining State Court’s Rationale for Unexplained Habeas Decision (p 9)
  3. Do Black Lives Matter in the Supreme Court? (p 10)
  4. Texas Court of Criminal Appeals: Lawyer’s Failure to Advise Client of Opinion Making It Impossible for State to Meet Its Burden of Proof Constitutes Ineffective Assistance of Counsel (p 13)
  5. Ohio Supreme Court: Policy of Inventory Search Upon Arrest Does Not Empower Police to Retrieve Property from Area Protected by Fourth Amendment (p 14)
  6. Philly Prosecutor’s ‘Do Not Call’ List Released; Names Cops Not to Call to the Stand (p 15)
  7. Alabama’s Most Populous County Reaches Bail Reform Settlement, But Problems Could Persist (p 16)
  8. Sixth Circuit Suppresses Evidence Where Triggering Event Specified in Anticipatory Search Warrant Never Occurred (p 17)
  9. S.C. Supreme Court Rules Counsel’s Failure to Recognize Ex Post Facto Issue in Advising Defendant to Accept Plea Deal Constituted IAC (p 18)
  10. New Mexico Supreme Court Holds SCOTUS Prohibition Against Warrantless Blood Tests in DWI Cases Applies Retroactively (p 18)
  11. DOJ: Police Shooting Family Dogs has Become ‘Epidemic’ (p 20)
  12. Sixth Circuit: Statute of Limitations for § 1983 Claim Accrues When Criminal Proceedings are Terminated (p 21)
  13. No Increase in Murder Rate for Civilians or Police Following Abolition of Death Penalty (p 22)
  14. Ohio Supreme Court: Prisoner Entitled to Results of Post-Conviction DNA Profile (p 22)
  15. Ninth Circuit: California Carjacking Not a Crime of Violence Post-Johnson (p 23)
  16. Minnesota Supreme Court: Prisoner Entitled to Appointed Attorney for One Review of Conviction, Even When It’s Not a Direct Appeal (p 24)
  17. Web-Based Database Exposes Depth and Breadth of Police Criminality (p 24)
  18. Execution Numbers Down in 2017 (p 25)
  19. Vermont Supreme Court: Defendant Cannot be Compelled to Submit to Competency Evaluation by State’s Expert (p 26)
  20. Colorado Supreme Court: ‘Entry of Judgment’ for New Trial Motion Means Both Conviction and Imposition of Sentence (p 26)
  21. California Supreme Court Vacates Conviction and Death Sentence After Experts Recant Testimony (p 27)
  22. Florida Supreme Court Announces SOL Defense Must be Raised at Trial to Preserve Issue for Direct Appeal (p 28)
  23. New Mexico Supreme Court Reverses Convictions Based on Double Jeopardy Violations (p 30)
  24. Virginia Supreme Court Grants Relief Under Revised Actual Innocence Statute (p 30)
  25. Third Circuit Reverses Occupational Restriction in Excess of Statutory Maximum for Supervised Release (p 31)
  26. California Court of Appeal Rejects Gang Enhancement Based on Expert Witness’ Case-Specific Hearsay Evidence (p 32)
  27. Eleventh Circuit Clarifies When a Court Must Conduct Resentencing Following § 2255 Relief (p 32)
  28. Colorado High Court Clarifies Crime-Fraud Exception to Attorney-Client Privilege (p 34)
  29. Delaware Supreme Court Describes What Constitutes ‘Effective’ Counsel at Sentencing (p 35)
  30. Ninth Circuit Reverses Conviction for Transporting an Illegal Alien Due to Improper Jury Instruction (p 36)
  31. Wyoming Supreme Court Adopts ‘Castle Doctrine’ for Cohabitants (p 37)
  32. $10 Million Award for California Man Wrongfully Imprisoned (p 38)
  33. Pennsylvania Supreme Court Holds Any Search of Cellphone Requires Warrant (p 38)
  34. Ninth Circuit: Violations Alleged After Expiration of Supervised Release Term Must be Factually Related to Pre-Expiration Allegation (p 39)
  35. Golden State Killer Suspect Arrest Opens Floodgates for Law Enforcement Use of DNA Websites (p 40)
  36. Idaho Supreme Court Orders Acquittal for Insufficient Identification of Drug (p 41)
  37. 10th Circuit: Observation of Stack of 15 Credit Cards Does Not Provide Police With Probable Cause to Examine Name on Cards for Evidence of a Crime (p 42)
  38. News in Brief (p 42)

Cell-Site Simulators: Police Use Military Technology to Reach out and Spy on You

by Christopher Zoukis

Law enforcement agencies nationwide are employing technology, designed for military use in foreign lands, in order to track the location of U.S. citizens on American soil. And authorities — all the way up to the FBI — have gone to great lengths to hide the surveillance system from the public, the criminal defense bar, and even the judiciary.

Cell-site simulators, also known as stingrays, trick cellphones into connecting to the device instead of an actual cell tower. Police operating the devices can track the location of all connected cellphones within a certain radius, and also can potentially intercept metadata about phone calls (the number called and length of the call), the content of phone calls and text messages, as well as the nature of data usage — including browser information. All of this takes place unbeknownst to users whose cellphones have been hijacked.

The growing use of stingray trackers has alarmed privacy advocates and criminal defense attorneys, but concerns over their use have been met with silence from police and prosecutors. Law enforcement in at least 23 states use the technology, as do a host of federal agencies.

In some cases, prosecutors have gone so far ...

SCOTUS Adopts ‘Look Through’ Methodology for Federal Courts in Determining State Court’s Rationale for Unexplained Habeas Decision

by Richard Resch

On April 17, 2018, the Supreme Court of the United States (“SCOTUS”) issued an opinion in which it instructed that federal courts are required to “look through” an unexplained decision of the last state court to rule on the merits of a state habeas petition to the last state-court decision that provides a relevant rationale.

Marion Wilson was convicted of murder and sentenced to death. He subsequently sought habeas relief in Georgia Superior Court, arguing ineffective assistance of counsel (“IAC”) during sentencing. He argued that counsel failed to provide new testimonial evidence regarding his childhood and the impairment of the frontal lobe of his brain. The court denied his petition, in part, because it determined that his lawyer’s performance was not deficient and had not prejudiced Wilson. The Georgia Supreme Court summarily denied his application to appeal without providing an explanatory opinion.

Wilson then filed a federal habeas petition based upon the same IAC argument raised in state court. The district court assumed that his counsel had been “deficient” in failing to investigate his childhood and brain condition. But the court deferred to the state habeas court’s determination that the deficiencies did not “prejudice” him.

Wilson appealed ...

Do Black Lives Matter in the Supreme Court?

by Michael Avery

Protests by tens of thousands of Americans, black and white, have urged us to remember that Black Lives Matter. The movement is an outgrowth of concern over the epidemic of police violence against black people. But the issue of whether black lives matter as much as white lives is much broader. And from the beginning of our republic, it has been to a great extent a question of constitutional law. The nation’s founders wrote slavery into the Constitution to achieve compromises that would permit the creation of a United States. When that union was ripped apart by the Civil War, the Congress rewrote the Constitution to forbid slavery and to require that all people receive the equal protection of the law in the Thirteenth and Fourteenth Amendments.

As I was beginning to prepare my column for this month, I bought a new house. Trying to cut down on the boxes of files I had to move, I started to go through some of my papers. I came across a transcript of a speech I gave to a section of the Massachusetts Bar Association in 1991. My topic was racially motivated police misconduct, and I came to the ...

Texas Court of Criminal Appeals: Lawyer’s Failure to Advise Client of Opinion Making It Impossible for State to Meet Its Burden of Proof Constitutes Ineffective Assistance of Counsel

by Matt Clarke

On September 27, 2017, the Court of Criminal Appeals of Texas held that a guilty plea for obtaining a controlled substance “through the use of a fraudulent prescription form” was invalid because it was given as a result of deficient legal advice from defendant’s attorney who failed to inform defendant that the prosecution would not be able to meet its burden of proof in light of governing case law precedent.

The prosecution’s theory of the case was that Lewis had hand-written a false prescription on an otherwise legitimate preprinted prescription form bearing the name of a physician’s assistant. Darren Lewis pleaded guilty to using a fraudulent prescription form to obtain a controlled substance in violation of § 481.129(a)(5)(B), Texas Health & Safety Code Ann., and received a five-year plea-bargained prison sentence.

Once he was in prison, Lewis discovered that under Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012), the State would have been unable to meet its burden of proof to convict him of violating § 481.129(a)(5)(B). He filed a habeas-corpus application, arguing that his guilty plea was “involuntary due to the ineffective assistance of ...

Ohio Supreme Court: Policy of Inventory Search Upon Arrest Does Not Empower Police to Retrieve Property from Area Protected by Fourth Amendment

by Dale Chappell

Evidence retrieved from a purse unlawfully removed from a vehicle after an arrest violated the Fourth Amendment, despite the existence of a police department policy allowing the search of the purse under the circumstances, the Supreme Court of Ohio held on January 16, 2018.

When an Ohio State Highway Patrol trooper stopped Jamie Banks-Harvey for speeding and found she had an outstanding warrant, he placed her in custody and secured her in his patrol car. The owner of the vehicle she was driving was a passenger and refused to allow police to search his vehicle. Nevertheless, the trooper entered the vehicle, retrieved Banks-Harvey’s purse, and searched it on the hood of his car. In the purse, he found needles and what appeared to be drugs. A local police officer on the scene mentioned that he may have seen a capsule in the vehicle. The officer then searched the vehicle, finding clear capsules and a needle. After the search, the owner was allowed to leave with his car. Banks-Harvey remained in custody.

Banks-Harvey was charged with felony possession of drugs and misdemeanor possession of drug paraphernalia based on the items found in her purse. When she filed a ...

Philly Prosecutor’s ‘Do Not Call’ List Released; Names Cops Not to Call to the Stand

by Christopher Zoukis

Corruption in the Philadelphia Police Department led local prosecutors to prepare a list of cops who had engaged in misconduct, including excessive force, drinking on duty, and lying to investigators. The list contains 66 names and was referred to by prosecutors as the “Do Not Call” list — as in, do not permit these officers on the witness stand.

But the list, prepared by disgraced former District Attorney Seth Williams, who is now serving a five-year federal sentence for accepting a bribe, was only recently released pursuant to a court order. According to The Philadelphia Inquirer, about half of the cops on the list are still on the job; nine of them are on active duty and made a collective 41 arrests in 2017. A group of five of the officers made more than 800 arrests in the past five years.

The Do-Not-Call list is indicative of a problem in the Philadelphia Police Department, one that is becoming a major headache for prosecutors, including new District Attorney Larry Krasner. Prosecutors have a duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory evidence to the defense, and that includes anything about arresting or testifying ...

Alabama’s Most Populous County Reaches Bail Reform Settlement, But Problems Could Persist

by Steve Horn

Jefferson County, the most populous county in Alabama, reached a Resolution Agreement on April 6 with the U.S. Department of Justice and the group Equal Justice Under Law in response to a complaint brought by the group alleging that the County court system’s bail policy violated Title VI of the Civil Rights Act.

The Agreement mandates that the County will do “risk-based assessments and pretrial release alternatives, acting as substitutes for traditional bail bond requirements in determining which defendants are released prior to trial and to establish a fully-funded pretrial services agency for Jefferson County,” explains Equal Justice Under Law’s press release announcing the striking of the deal.

The deal comes in the aftermath of an administrative complaint filed by Equal Justice Under Law against the Tenth Judicial Circuit of Alabama on February 19, 2016 through the U.S. Department of Justice’s Division of Civil Rights.

Virginia Pretrial Risk Assessment

The Resolution Agreement directs Alabama’s Tenth Judicial Circuit to utilize the Virginia Pretrial Risk Assessment Instrument (“VPRAI”) to make decisions on bail and the expenses relating to posting bail, as opposed to the system in Alabama, which Equal Justice Under Law alleged was discriminatory in ...

Sixth Circuit Suppresses Evidence Where Triggering Event Specified in Anticipatory Search Warrant Never Occurred

by Richard Resch

In an opinion issued on April 4, 2018, the U.S. Court of Appeals for the Sixth Circuit affirmed the suppression of evidence ostensibly obtained pursuant to an anticipatory search warrant where the triggering event never occurred.

This case was set in motion when a police dog alerted law enforcement officers to a suspicious-smelling package. An examination of the package revealed that it contained methamphetamine. It was addressed to “B. PERKINS” at “5831 Rowe Gap RD Belvidere, TN 37306.”

Investigators determined that the defendant, William Perkins (aka Billy), resided at that address. A trusted confidential informant advised police that he had known Perkins for 20 years, Perkins was a meth dealer, and he had bought meth from Perkins within the past six months. Additionally, local law enforcement knew that Perkins was a meth dealer.

Based on the foregoing information, DEA officer Daniel Warren sought an anticipatory search warrant for Perkin’s residence. Unlike a traditional warrant, an anticipatory warrant becomes effective only upon the occurrence of a specified future event—the “triggering event”—that establishes probable cause for the search. United States v. Grubbs, 547 U.S. 90 (2006).

Warren proposed that fellow DEA officer Kyle Brewer pose as ...

S.C. Supreme Court Rules Counsel’s Failure to Recognize Ex Post Facto Issue in Advising Defendant to Accept Plea Deal Constituted IAC

by Dale Chappell

The Supreme Court of South Carolina found that counsel’s advice to a defendant to take a plea deal to avoid the State’s threat to use a new, harsher sentencing law if he refused to plead guilty was “clearly deficient.” Therefore, the Court reversed the post-conviction relief court’s dismissal of defendant’s application.

Michael Robinson was indicted in 2013 on charges of first-degree criminal sexual conduct (“CSC”) with a minor. The alleged conduct occurred between 1998 and 2000. Between 2001 and 2012, the CSC statute was amended by increasing the applicable sentencing range. The State offered “to let” Robinson plead guilty under the sentencing law in effect prior to the 2012 amendment (0 to 30 years imprisonment); the State warned that if he refused the plea deal he would be subject to the harsher sentencing range implemented by the 2012 amendment to the CSC sentencing statute (25 years to life imprisonment) if he went to trial.

Apparently unaware that the 2012 sentencing range was not applicable to Robinson under any circumstance due to the prohibition against ex post facto criminal laws, his lawyer advised him to accept the plea deal. Based on his lawyer’s advice, Robinson pleaded guilty ...

New Mexico Supreme Court Holds SCOTUS Prohibition Against Warrantless Blood Tests in DWI Cases Applies Retroactively

by Matt Clarke

On October 5, 2017, the Supreme Court of New Mexico held that an impaired driver generally could not be subject to criminal penalties for refusing to submit to a blood test for the presence of alcohol or drugs.

On April 23, 2011, Laressa Vargas encountered a DWI checkpoint in Albuquerque, New Mexico at 1 a.m. When she said, “good afternoon,” she and her car had a faint odor of alcohol, and her eyes were bloodshot. A deputy immediately suspected that she was driving under the influence of alcohol. She denied drinking alcohol.

The deputy asked her for a breath sample. She consented and registered 0.04. He requested another sample. She once again consented and registered 0.05. Interpreting the tests as inconsistent with his perception of her level of impairment, the deputy asked Vargas for a blood sample. She refused.

The deputy did not have a warrant for a blood test, nor could he have obtained one because state law required that such a warrant affidavit state a belief that Vargas had committed a felony or caused death or great bodily injury while driving under the influence of alcohol. NMSA 1978, § 66-8-111(A ...

DOJ: Police Shooting Family Dogs has Become ‘Epidemic’

by Dale Chappell

Cops in this country kill so many dogs each year that a specialist at the Department of Justice’s (“DOJ”) community-oriented program services office says it has become an “epidemic.” The DOJ estimates that around 25 to 30 dogs are killed by cops every day, with some numbers as high as 10,000 per year. The totals could, in fact, be higher, since most police agencies do not formally track officer-involved shootings involving animals.

In Detroit, cops killed at least 25 dogs in 2015 and 21 before the first half of 2016. According to police records, two detectives had killed at least 100 dogs between them over the course of their careers. Meanwhile Metro Atlanta cops kill on average 50 dogs per year, and a Buffalo, New York, news channel investigation found that police there killed 92 dogs over three years, with one officer having killed 26 himself.

The pet owner’s recourse to hold cops accountable for killing a family pet, though, is not easy. The law provides “immunity” for cops unless their actions were “plainly incompetent” or they violated the law, according to the courts. Dogs are considered “property” under the U.S. Constitution’s Fourth Amendment ...

Sixth Circuit: Statute of Limitations for § 1983 Claim Accrues When Criminal Proceedings are Terminated

by Christopher Zoukis

The United States Court of Appeals for the Sixth Circuit ruled on March 15, 2018, that a claim for prosecutorial misconduct, brought by a wrongfully convicted defendant, does not accrue for statute of limitations purposes when the conviction is vacated, but when the criminal proceedings are terminated.

Douglas Jordan was tried and convicted in Tennessee for the 1998 murder of Jennifer Byerley. His direct appeal was denied by the Tennessee Court of Criminal Appeals. When Jordan became aware that certain evidence —specifically a knife found near Byerley’s body that might have implicated someone else in the crime — was withheld by prosecutors, he filed a motion for post-conviction relief. This time, the Tennessee appeals court granted his motion and, in 2011, vacated his conviction. The court did not order his release, however, and the state chose to retry Jordan. He was acquitted in 2015.

Within one year of his acquittal, Jordan filed a 42 U.S.C. § 1983 claim against a Blount County prosecutor, detective, and the county itself. He claimed prosecutorial misconduct due to a blatant Brady violation. Brady v. Maryland, 373 U.S. 83 (1963), requires that prosecutors disclose exculpatory evidence to the defense ...

No Increase in Murder Rate for Civilians or Police Following Abolition of Death Penalty

by Matt Clarke

The transcript of a panel discussion titled “Life After the Death Penalty: Implications for Retentionist States,” presented by the Committees on Capital Punishment of the American Bar Association Section of Civil Rights & Social Justice and the New York City Bar Association, which was posted on the latter’s website on January 26, 2018, revealed that there was no increase in the murder rate for civilians or police officers in states that abolished the death penalty.

A longstanding argument by death penalty proponents is that abolition would lead to a “parade of horribles,” including an increased overall murder rate and increased police officer murder rate. The topic of panelist Robert Dunham, executive director of the Death Penalty Information Center, was statistical information about the effect of death penalty abolition in the modern era as shown by FBI crime statistics since 1987, the first year for which statistics on law enforcement officers feloniously killed in the line of duty are available. The Center does not take a position for or against the death penalty but is critical of how it is administered across the U.S.

Dunham first noted that currently 31 states and the federal government ...

Ohio Supreme Court: Prisoner Entitled to Results of Post-Conviction DNA Profile

by Matt Clarke

On March 6, 2018, the Supreme Court of Ohio held that the State must provide a prisoner the DNA profile created after his application for post-conviction DNA testing of crime-scene evidence was granted.

Tyrone Noling received the death penalty for the 1990 murder of an Ohio couple. In 2008, he filed an application for post-conviction DNA testing of a cigarette butt found on the driveway of the couple’s home. The court noted that the pre-trial DNA test on the cigarette butt excluded Noling as the source of the DNA and was definitive, so it denied his application.

In 2010, Noling filed a second application based on newly discovered evidence pointing to other suspects and that advances in DNA testing could provide a definitive identification of the DNA on the cigarette butt. His application was denied, and he appealed.

The Ohio Supreme Court held that a trial court must apply the statutory definition of “definitive DNA test” before dismissing a subsequent application for post-conviction DNA testing. It reversed and remanded, instructing the trial court to consider whether the newly discovered evidence regarding other suspects showed, by a preponderance of the evidence, a possibility of discovering new, previously undiscovered ...

Ninth Circuit: California Carjacking Not a Crime of Violence Post-Johnson

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit ruled on January 29, 2018, that California’s carjacking law, Penal Code § 215(a), no longer constitutes a crime of violence under 8 U.S.C. § 1101(a)(43)(F) in light of the U.S. Supreme Court’s decision in Johnson v. United States, 559 U.S. 133 (2010).

In 1995, Roberto Solorio-Ruiz, a Mexican national, was convicted of carjacking and evading a police officer in violation of California law. He was sentenced to 21 years and four months in state prison. Thereafter, the United States sought to remove Solorio-Ruiz from the country, claiming that carjacking is a “crime of violence” and a “theft offense.” The government argued this aggravated felony subjected Solorio-Ruiz to removal under 8 U.S.C. § 1227(a)(2)(A)(iii).

An immigration judge agreed that carjacking amounted to an aggravated felony and that Solorio-Ruiz was thus deportable. The Board of Immigration Appeals (“BIA”) affirmed that carjacking was a crime of violence, but made no ruling as to whether it was a theft offense. Solorio-Ruiz appealed to the Ninth Circuit, and the Court reversed the BIA ruling.

Solorio-Ruiz argued that ...

Minnesota Supreme Court: Prisoner Entitled to Appointed Attorney for One Review of Conviction, Even When It’s Not a Direct Appeal

by Christopher Zoukis

The Supreme Court of Minnesota ruled that a convicted defendant is entitled to appointed counsel, pursuant to statute, for one review of his or her conviction—even if that review is on a petition for postconviction relief, as opposed to a direct appeal. The Court’s January 24, 2018 opinion clarified Minn. Stat. § 590.05 (2016), which provides that a convicted defendant is entitled to representation by a public defender “if the person has not already had a direct appeal of the conviction.”

In 2012, Jamil Joshua Eason was convicted of first-degree felony murder. He was sentenced to life in prison with the possibility of release after 30 years. Soon after his conviction, Eason filed a notice of appeal, supported by a 24-page brief drafted by his public defender. Prior to the date that the State’s responsive brief was due, Eason voluntarily dismissed his appeal. Nothing in the record indicated why he did this.

Almost two years later, Eason filed a pro se petition for postconviction relief. He requested that counsel be appointed pursuant to § 590.05. Because Easton had fired his public defender during his aborted direct appeal, the state public defender’s office declined to ...

Web-Based Database Exposes Depth and Breadth of Police Criminality

by Derek Gilna

The launch of the Henry A. Wallace Police Crime Database in September of 2017 puts at the public’s disposal, through a simple web search, all crimes committed by non-federal sworn police officers. The database contains information on the 8,006 criminal arrests of 6,596 officers from 2005 to 2012, and it is anticipated that additional years will be added on an accelerating basis going forward.

As noted by officials at the Wallace database, “The arrested officers were employed by 2,830 state, local, and special law enforcement agencies located in 1,302 counties and independent cities in all 50 states and the District of Columbia. Arrest case data are searchable by location that generate heat-maps and also searchable by specific criminal offenses and offense characteristics.”

Although the U.S. Department of Justice’s Bureau of Justice Statistics publishes numerous surveys and is charged with obtaining information on myriad categories of criminal activity, it apparently has never tracked the number of police officers arrested for committing crimes themselves. (Note: It has also been extensively reported by multiple news organizations that no federal agency has tracked fatal police shootings.)

According to the Wallace database officials, “The two most ...

Execution Numbers Down in 2017

by Christopher Zoukis

The number of death row sentences handed out across the country is in decline. Despite this trend, death rows remain crowded. This is the result of a similar, but somewhat unrelated shift: Executions are also in a state of free fall. In fact, there were fewer executions in 2017 than in 23 of the last 25 years.

Professor Lee Kovarsky of the University of Maryland School of Law referred to execution activity as “fall[ing] off a cliff.” According to Kovarsky, there were 23 executions in 2017, compared to 98 in 1999. These numbers represent the dawn of a new era in state-sanctioned murder. Between 1999 and 2001, 83 individuals were put to death in American jurisdictions. Between 2015 and 2017, there were 24 executions.

Kovarsky offers three reasons why executions are in decline. First, judges are finally coming around to “[the] science about wrongful convictions.” The use of DNA analysis in post-conviction proceedings is now standard practice, though prosecutors still tend to fight the use of scientific tools that help ensure the right person is convicted.

Second, it is becoming more difficult for states to perform executions in a constitutionally acceptable manner. Drug ...

Vermont Supreme Court: Defendant Cannot be Compelled to Submit to Competency Evaluation by State’s Expert

by David Reutter

The Supreme Court of Vermont held that the State may not compel a defendant to submit to a competency evaluation conducted by a mental-health expert of the State’s choosing after a court-ordered competency evaluation by a neutral mental-health expert.

Following his arrest for second-degree murder, Christopher Sharrow’s attorney requested a competency hearing. Pursuant to 13 V.S.A. § 4814, the trial court ordered an evaluation, and the Department of Mental Health selected a neutral expert to conduct the evaluation.

The expert concluded in a May 23, 2016, report that Sharrow “is not mentally competent to stand trial for the alleged offense.” Defense counsel procured another expert to perform a competency evaluation, but there was no attempt to admit that expert’s report into the record. The State then procured its own expert and requested the trial court to order Sharrow to submit to an evaluation. The court granted the motion, and Sharrow filed an interlocutory appeal.

On appeal, the issue before the Vermont Supreme Court was whether 13 V.S.A. § 4814 gives the trial court the authority to order a defendant to submit to a competency evaluation performed by an expert retained by the ...

Colorado Supreme Court: ‘Entry of Judgment’ for New Trial Motion Means Both Conviction and Imposition of Sentence

by Dale Chappell

“Entry of judgment” for purposes of a motion for new trial under Criminal Procedure Rule 33(c) means the finding of guilt and the imposition of a sentence, the Colorado Supreme Court held on January 22, 2018, finding a defendant’s motion for new trial was timely filed.

Fifteen months after David Bueno was found guilty by a jury for the murder of a fellow prisoner, but before he was sentenced, the State disclosed evidence it had in its possession since the first days of the investigation that could have changed the outcome of his trial.

Bueno filed a motion for a new trial under Rule 33(c), arguing the State had purposely withheld the exculpatory evidence. The State opposed his motion on the basis that it was filed more than one year after the date of his conviction and was thus time-barred. The trial court disagreed and granted a new trial, and the court of appeals affirmed the trial court’s decision. The State appealed to the Supreme Court of Colorado.

The questions before the Supreme Court were (1) whether Bueno’s motion for a new trial was timely filed and (2) whether the State had improperly withheld exculpatory ...

California Supreme Court Vacates Conviction and Death Sentence After Experts Recant Testimony

by Dale Chappell

The Supreme Court of California granted a writ of habeas corpus and vacated a first-degree murder conviction and death sentence after several of the experts who testified at trial recanted their testimony over 25 years later.

Vincent Benavides was convicted of first-degree murder and sentenced to death for the supposed sexual assault that led to the death of his girlfriend’s 21-month-old daughter in 1991. At the trial, the State relied on the opinions of doctors who had treated the victim and testified that she had died of blunt-force trauma to her abdominal organs as a result of a sexual assault. Over two decades later, those doctors and other caregivers recanted their stories, and admitted that had they actually reviewed the victim’s medical records, they would have concluded she was not sexually assaulted.

Benavides offered new declarations obtained to support his petition for relief. One doctor declared that the injuries “could not have physically” been the result of sexual assault. Another doctor who earlier testified the victim died as a result of being sodomized declared, “it is now my opinion to a high degree of medical certainty” the victim was not sexually assaulted. A doctor characterized as “the ...

Florida Supreme Court Announces SOL Defense Must be Raised at Trial to Preserve Issue for Direct Appeal

by Richard Resch

In an April 12, 2018 opinion, the Supreme Court of Florida announced that a statute of limitations (“SOL”) defense must be raised in the trial court in order to preserve the issue for direct appeal.

In 2011, DNA evidence linked Earvin Smith to a home invasion and sexual battery that took place over 20 years ago. A jury convicted him of multiple offenses, including armed burglary, which is a felony punishable by up to life in prison. The offense is subject to a four-year SOL. However, Smith never raised the SOL defense at trial.

On appeal to the Third District, he raised the SOL issue for the first time, arguing that the four-year SOL meant that the State was time-barred from prosecuting him for this offense. As a result, he claimed that his conviction and sentence must be reversed as a matter of fundamental error. The Third District agreed with him, but certified the question as a matter of great public importance to the Florida Supreme Court. Thus, the question before the Supreme Court was “whether a claim that a conviction for a charged offense is barred by the statute of limitations must be raised in the ...

New Mexico Supreme Court Reverses Convictions Based on Double Jeopardy Violations

by Christopher Zoukis

The Supreme Court of New Mexico reversed a defendant’s convictions for shooting at a dwelling resulting in death or great bodily harm and conspiracy to shoot at a dwelling based on a violation of the Double Jeopardy Clause contained in the Fifth Amendment to the U.S. Constitution.

The case was remanded for resentencing, but other, more serious convictions were upheld by the Court in the February 8, 2018, opinion.

Noe Torres was convicted of being involved in a conspiracy to murder 17-year-old Ruben Perez. In the early hours of September 15, 2005, the conspirators fired nine shots through Perez’s bedroom window. Perez was not hit, but his 10-year-old brother Carlos was shot and killed.

Six years after the crime, Torres was arrested in Mexico and extradited to New Mexico to stand trial on multiple charges. A jury found him guilty of: shooting at a dwelling resulting in death or great bodily harm to Carlos, first-degree murder of Carlos, attempted first-degree murder of Ruben, conspiracy to commit first-degree murder, conspiracy to shoot at a dwelling, transportation of a firearm by a felon, and witness intimidation. Torres was sentenced to life imprisonment plus 31½ years.

On appeal, Torres ...

Virginia Supreme Court Grants Relief Under Revised Actual Innocence Statute

by Dale Chappell

The change of a single word in Virginia’s actual innocence statute “fundamentally changed the nature” of actual innocence inquiries, the Supreme Court of Virginia announced, finding a petitioner proved his actual innocence under the revised statute.

In 1978, Roy Watford pleaded guilty to the rape of a 12-year-old girl. When a DNA test in 2016 showed that he was not linked to the DNA evidence found at the crime scene, he petitioned the Virginia Supreme Court for a writ of actual innocence. After an evidentiary hearing during which the rape victim testified that she “could not remember” identifying Watford as her attacker and other witnesses said Watford was not in the area on the day of the rape, the State still urged the Court to dismiss Watford’s petition because he could not conclusively establish he was not one of the three men who had raped the girl and because he pleaded guilty. The Supreme Court did not agree.

The General Assembly lowered the burden of proof in 2013 for petitioners filing actual innocence petitions under Code § 19.2-327.5. Instead of having to prove “no rational trier of fact could have found proof beyond a reasonable ...

Third Circuit Reverses Occupational Restriction in Excess of Statutory Maximum for Supervised Release

by Matt Clarke

On September 14, 2017, the U.S. Court of Appeals for the Third Circuit reversed the portion of the sentence that restricted a former Realtor who had pleaded guilty to one count of mail fraud from working in real estate for five years following his release from prison. It held the maximum restriction possible for that offense was three years. The Court upheld his 70-month prison term followed by three years of supervised release.

Randy Poulson operated fraudulent real estate and investment schemes in New Jersey from 2006 through 2011, costing over 75 victims a total of $2,721,240.91. Using his company, Equity Capital Investments, LLC, he tricked people facing foreclosure on their properties to sign over their deeds to him in exchange for a false promise to pay off the outstanding mortgages. He then used Poulson Russo LLC, a real estate investment education company, to organize for-fee speeches, seminars, monthly dinners, and private tutorials during which he solicited attendees to invest in Equity Capital, falsely claiming their money would be used to purchase, maintain, and improve those residential properties.

He convinced over 25 people to deed him their properties and over 50 people to ...

California Court of Appeal Rejects Gang Enhancement Based on Expert Witness’ Case-Specific Hearsay Evidence

by Christopher Zoukis

The Court of Appeal of California, Fourth Appellate District, Division Two reversed a trial court’s imposition of a gang enhancement on a defendant when the evidence of gang activity consisted almost entirely of hearsay relied upon by an expert witness. The January 23, 2018, opinion affirmed the defendant’s underlying convictions but vacated the gang enhancement sentence.

On February 3, 2016, Hector Martinez and Jorge Gonzalez were approached by Ontario, California, police officer Devey as they walked away from what turned out to be a stolen truck. Martinez was charged with theft of a vehicle over $950 and possession of burglary tools. A jury convicted him and determined that the vehicle theft was committed in association with criminal gang activity. As such, Martinez was sentenced to eight years in prison based on a gang enhancement under Pen. Code § 186.22.

Martinez appealed, arguing that the gang enhancement should be reversed due to the gang expert’s reliance on “testimonial” “case-specific” hearsay at trial. The People conceded that the expert’s testimony included inadmissible hearsay but argued that any such errors were harmless.

Hearsay is an out-of-court statement used to prove the truth of the matter asserted and is generally ...

Eleventh Circuit Clarifies When a Court Must Conduct Resentencing Following § 2255 Relief

by Dale Chappell

In an issue of first impression for the U.S. Court of Appeals for the Eleventh Circuit, the Court clarified when a district court must hold a resentencing hearing, rather than summarily “correcting” a sentence, when granting relief under 28 U.S.C. § 2255.

In the wake of courts granting § 2255 relief based on the U.S. Supreme Court’s retroactive decision in Johnson v. United States, 135 S. Ct. 2551 (2015), holding the Armed Career Criminal Act (“ACCA”) residual clause unconstitutional, numerous prisoners saw their mandatory ACCA sentences vacated, but the remedy imposed by the courts sometimes did not make any difference at the end of the day.

While the unconstitutional ACCA sentence was vacated, courts were leaving the rest of the sentence intact, by simply “correcting” the sentence by removing the ACCA sentence on the record.

The unanswered question was when must a court conduct a resentencing hearing and when may it merely “correct” a sentence under section 2255? The Eleventh Circuit has finally answered that question.

When Jazzman Brown learned his § 2255 motion was granted and his 15-year mandatory minimum ACCA sentence was vacated in light of Johnson, he was surprised to ...

Colorado High Court Clarifies Crime-Fraud Exception to Attorney-Client Privilege

by Dale Chappell

In a case of first impression, the Supreme Court of Colorado held February 5, 2018, that a party seeking to invoke the crime-fraud exception to the attorney-client privilege must demonstrate “probable cause” that a crime or fraud is being committed by the client’s communications with his or her attorney.

When the State subpoenaed attorney Amy Brimha to produce her communications with her client, M.W., the owner of a company suspected of manufacturing herbal cigarettes laced with synthetic cannabinoids, she filed a motion to quash the subpoena, citing the attorney-client privilege.

The State, however, argued the crime-fraud exception to the attorney-client privilege applied because Brimha’s communications with M.W. helped to further his criminal conduct. Brimha countered that M.W.’s alleged criminal conduct had curtailed when she was retained, thus the crime-fraud exception did not apply since her communications with him did not involve a “continuing or future” crime. However, the district court agreed with the State and ordered Brimha to turn over her communications with M.W. to the State.

Before turning them over, Brimha petitioned the Colorado Supreme Court to determine (1) whether the crime-fraud exception applies and (2) whether the State was required ...

Delaware Supreme Court Describes What Constitutes ‘Effective’ Counsel at Sentencing

by Dale Chappell

Providing a lesson on what defense lawyers should and should not do to get their client a lower sentence, the Supreme Court of Delaware held that counsel was ineffective when he met with his client for the first time just minutes before sentencing and did not coach him on allocution.

There was no doubt that Darius Harden’s crime called for a serious sentence, the Court said, but his defense lawyer’s lack of assistance was too much to ignore. Harden, who pleaded guilty in 2014 to offensive assault second degree and endangering the welfare of a child for physically assaulting his girlfriend in front of her child, went into his sentencing hearing expecting to receive no more than the 15 years in prison. The State had agreed to recommend 15 years as part of a plea agreement. Instead, he received 18 years.

Harden then filed a Rule 61 motion for post-conviction relief, claiming that his counsel was ineffective during the sentencing phase. The superior court, though, denied his motion, holding that the record supported the 18-year sentence, so Harden was not prejudiced by counsel’s ineffective assistance. Harden appealed, and the Delaware Supreme Court agreed to hear his case ...

Ninth Circuit Reverses Conviction for Transporting an Illegal Alien Due to Improper Jury Instruction

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit reversed a defendant’s conviction for transporting an illegal alien for financial gain because the district court improperly instructed the jury on the mens rea element of the crime. The January 30, 2018, opinion sent the case back to the district court for retrial.

Lidia Rodriguez, a U.S. citizen, was arrested at the Arizona/Mexico border crossing after U.S. Border Patrol agents determined that her passenger, Enrique Martinez-Arguelles, was an illegal alien in possession of a fraudulent border-crossing card.

Investigators believed that Rodriguez was paid to smuggle Martinez-Arguelles into the country, so they charged her with violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (B)(i).

The crime Rodriguez was charged with imposes criminal liability on “[a]ny person who . . . knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law,” and provides for increased penalties if ...

Wyoming Supreme Court Adopts ‘Castle Doctrine’ for Cohabitants

by Dale Chappell

In a case of first impression before the Supreme Court of Wyoming, the Court held that a cohabitant who attacks another cohabitant in their shared home may raise the “castle doctrine” in a self-defense argument, defending her use of force to protect herself from the other cohabitant.

When Misty Widdison was staying with her uncle in 2016, they got into an argument, and Widdison stabbed her uncle in the leg and neck. After a jury trial, she was convicted and sentenced to prison for attempted second-degree murder and aggravated assault. In her appeal to the Wyoming Supreme Court, she argued that the district court improperly refused to instruct the jury about the “castle doctrine” of self-defense in her use of force to defend herself.

The castle doctrine provides that a person may “stand his ground and kill his assailant if he is assaulted, without fault, in his own home.” Drennen v. State, 311 P.3d 116 (Wyo. 2013). Known by various names, the castle doctrine is not new; a majority of the states have such a rule allowing people to “stand their ground” when being attacked in their home.

But whether a person has the right ...

$10 Million Award for California Man Wrongfully Imprisoned

by Derek Gilna

A man who was wrongfully accused, convicted, and imprisoned because of the alleged misconduct of four San Francisco police officers who fabricated and withheld evidence to frame him for a 2007 murder, has been awarded $10 million by a federal jury.

Jamal Trulove had been accused of killing his friend, Seu Kuka, convicted of the crime in California state court, and sentenced to a 50-year sentence. However, that conviction was set aside by the state appeals court, based upon prosecutorial misconduct.

The prosecutor told the jury that Trulove had threatened the life of the only eyewitness to the crime — who initially wavered on his identification of Trulove as the offender — for testifying against him.

A second trial of Trulove in 2015 resulted in an acquittal.

Trulove then filed a federal civil rights suit against the four San Francisco police officers involved in his prosecution, and on April 6, 2018, a federal jury found that two principal homicide inspectors, Michael Johnson and Maureen D’Amico, had fabricated incriminating evidence, as well as withhold exculpatory evidence. The other two officers were not found to be responsible for any wrongdoing.

Trulove had alleged that D’Amico manipulated a photo array ...

Pennsylvania Supreme Court Holds Any Search of Cellphone Requires Warrant

by Dale Chappell

The Supreme Court of Pennsylvania made it clear: “If a member of law enforcement wishes to obtain information from a cellphone, get a warrant.” The Court held that turning on, as well as digging into a cellphone to obtain its number, constituted a search each that required a warrant, tossing all evidence against a murder suspect.

Michael Toll called 911 and said he had been shot. Police arrived to find Toll sitting in a car with a cellphone in his hand. He told police “Jeff” shot him. In Toll’s cellphone was a contact named “Jeff” who had been called shortly before the shooting. Toll died from his wounds.

In an unrelated incident, police arrested I. Dean Fulton the same day Toll died. Upon arrest, police seized a smartphone from Fulton. Detective John Harkins of the Philadelphia Police Department turned on Fulton’s phone and searched the phone’s menu to find its number.

It was then that Harkins linked Fulton to Toll as the “Jeff” Toll called before he was murdered. Harkins also left the phone on and monitored the incoming calls and texts, even answering a call on the phone from a person who agreed to meet ...

Ninth Circuit: Violations Alleged After Expiration of Supervised Release Term Must be Factually Related to Pre-Expiration Allegation

by Richard Resch

In a February 28, 2018, opinion, the U.S. Court of Appeals for the Ninth Circuit ruled that U.S. District Courts may not base a revocation of supervised release upon violations that (1) were not alleged prior to the expiration of the supervisory period and (2) are not factually related to any matter raised before the court during the supervision period.

Theresa Helena Campbell pleaded guilty to mail fraud and was sentenced by the U.S. District Court in the Eastern District of California to 18 months imprisonment and 36 months of supervised release.

On February 7, 2017—seven days prior to the originally scheduled expiration date of her supervised release—U.S. Probation Officer Eric Siles filed a report with the U.S. District Court in the Central District of California charging Campbell with three violations of conditions of her supervision (“Violation Report”).

Siles claimed Campbell had failed to disclose her ownership of a Chevrolet Camaro and loan she helped secure in order for a friend to purchase a BMW.

According to Siles, both activities constituted clear violations of her conditions of release. The court clerk issued a summons for Campbell to appear before the court on ...

Golden State Killer Suspect Arrest Opens Floodgates for Law Enforcement Use of DNA Websites

by Steve Horn

The use of DNA-based genealogy websites to track down Joseph DeAngelo — the “Golden State Killer” suspect — appears to have inspired police departments nationwide. It’s a move that has irked privacy advocates and criminal justice system reformers.

DeAngelo, a former police officer and alleged serial killer in the 1970s and 1980s, was arrested April 25 at his home in Sacramento County, California. He has been charged with murdering 12 people in California. He also is a suspect in dozens of rapes and over 100 burglaries.

Law enforcement officials stated they utilized the open-source family DNA website GEDmatch.com, creating a genetic profile under a fake name that helped lead them to DeAngelo.

Most criminal law experts say those who hand over their DNA to websites like GEDmatch have no expectation of privacy under the Fourth Amendment. But whether that same legal logic applies to their extended relatives, though, will remain an open question as the Golden State Killer’s case weaves its way through the courts.

Currently, DeAngelo is being held in the Sacramento County Jail without bail. A judge may soon order law enforcement to unseal more documents pertaining to the circumstances that led to the arrest, according to ...

Idaho Supreme Court Orders Acquittal for Insufficient Identification of Drug

by Matt Clarke

On March 2, 2018, the Supreme Court of Idaho vacated a prisoner’s conviction and sentence for possession of a controlled substance and ordered an acquittal because the substance she possessed had not been adequately identified as a controlled substance beyond a reasonable doubt.

Gracie Jean Tryon, an Idaho state prisoner, appealed her conviction for possession of methamphetamine. She had been a passenger in her boyfriend’s truck when it was stopped by a detective for a traffic violation. The detective allegedly smelled the faint odor of marijuana and used that as justification to search the vehicle. He found stems and black residue in a small purse, two hypodermic syringes, two glass pipes, and a Baggie with a white crystalline substance in a large purse. He arrested Tryon and her boyfriend.

At her trial for possession of a controlled substance and possession of drug paraphernalia, the detective testified that the white substance looked like methamphetamine, that he usually found pipes or syringes when he found methamphetamine, and that they were next to each other in the purse. He also said when he asked the boyfriend, who was not available to testify at the trial, whose methamphetamine was it, the ...

10th Circuit: Observation of Stack of 15 Credit Cards Does Not Provide Police With Probable Cause to Examine Name on Cards for Evidence of a Crime

by Christopher Zoukis

The United States Court of Appeals for the Tenth Circuit reversed a lower court’s decision to deny a motion to suppress because the search that led to the discovery of illegal materials lacked probable cause. The December 28, 2017, opinion sent the case back to the district court with instructions to grant the motion to suppress.

On August 15, 2015, Sergeant Christopher Eastwood of the Oklahoma City Police Department was dispatched to investigate a tip that someone was smoking marijuana in a black Honda with Texas tags parked in an Arby’s parking lot. When Eastwood arrived on the scene, he located the vehicle. When he tapped on the window and the driver opened the car door, Eastwood smelled the distinct odor of burnt marijuana.

Eastwood asked the driver of the vehicle, Walter Earl Saulsberry, for his license and insurance information. Saulsberry did not provide this documentation but did provide his name. Eastwood called for assistance, and when backup arrived, he asked Saulsberry for permission to search the car. Saulsberry gave permission to search for marijuana, and Eastwood promptly found a joint. Saulsberry was arrested.

Eastwood then searched the car again. Inside a bag, he saw a stack ...

News in Brief

California: The family of a mentally ill man who was shot and killed in 2014 by Lodi, California, police officers Scott Bratton and Adam Lockie settled with the city for $2.65 million on April 24, 2018, after U.S. District Court Judge Troy Nunley denied the city’s efforts to dismiss the case. Attorney Mark E. Merin, who represented relatives of Parminder Singh Shergill in the civil suit, said the family called 911 to request police assistance to transport the Gulf War veteran for mental health evaluation. According to Bratton and Lockie’s accounts, Shergill pulled a knife from his pocket, raised the weapon, lunged at them and threatened to kill them before they shot him 14 times. Four witnesses disputed that version of events; one said, “[Shergill] didn’t move. He was just standing there.” Bratton and Lockie were neither criminally charged nor disciplined for their roles in Shergill’s death.

Illinois: On May 15, 2018, Chicago police officer William Whitley, 61, pleaded guilty to a single count of sex trafficking of a minor. The 27-year veteran cop admitted to soliciting sex from a 14-year-old girl on multiple occasions. According to the plea agreement, Whitley also admitted to paying for ...




 

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