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Criminal Legal News: July, 2018

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...




 

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