by Steve Horn
Social media, broadly defined as encompassing popular websites, and smartphone applications such as Facebook, Twitter, Instagram and others, has been pointed to by many as a potentially revolutionary avenue through which citizens from around the world can communicate with one another to effect change and participate in democratic actions.
Underneath that popular narrative sits a murkier reality for defendants in the U.S. criminal justice system. A recent history of court rulings, combined with lack of legislative action on the federal-level, has ushered in an era in which law enforcement has nearly carte blanche authority to utilize social media during criminal investigations.
The broad authority given to law enforcement agencies to use social media has real-life consequences for defendants in the criminal justice system, even amid debate over Fourth Amendment privacy protections. Everyone from journalists, to criminal justice scholars, legislators, and the U.S. Supreme Court, have called for updated constitutional or legislative protections over law enforcement use of social media.
Some have heeded that call, predominantly in the legislative sphere – in city councils across the country and particularly in California. But, at the federal level, little has been done in courts or Congress to regulate ...
by Dale Chappell
Only Louisiana and Oregon allow non-unanimous jury verdicts to convict. In both states, the law allows just 10 of the 12 jurors to agree a person is guilty. While such laws give prosecutors “awesome power” to convict, they also have racist roots.
In 1898, Louisiana adopted the non-unanimity rule after it was required to allow blacks to serve on a jury, figuring that even if one or two blacks wound up on a jury and refused to convict, the white jurors could still convict. In 1934, Oregon passed a law allowing non-unanimity when a Jewish immigrant was convicted of manslaughter instead of murder. An editorial in a newspaper at the time blamed the reduced verdict on “vast immigration.”
By combining mandatory minimum sentences and harsh habitual penalty threats with non-unanimity, The New Orleans Advocate called this a “potent cocktail” in the hands of prosecutors. In a 2009 study by the Oregon Public Defense Services, researchers discovered that more than 40 percent of 662 convictions between 2007 and 2008 were non-unanimous. Louisiana’s numbers are similar.
Prosecutors, unsurprisingly, have pushed to keep the non-unanimity laws on the books, despite its racist origin. It was the Oregon District Attorney’s ...
by John W. Whitehead, Commentary, The Rutherford Institute
What characterizes American government today is not so much dysfunctional politics as it is ruthlessly contrived governance carried out behind the entertaining, distracting and disingenuous curtain of political theater. And what political theater it is, diabolically Shakespearean at times, full of sound and fury, yet in the end, signifying nothing.
Played out on the national stage and eagerly broadcast to a captive audience by media sponsors, this farcical exercise in political theater can, at times, seem riveting, life-changing and suspenseful, even for those who know better.
Week after week, the script changes—Donald Trump’s Tweets, Robert Mueller’s Russia probe, Michael Cohen’s legal troubles, porn star Stormy Daniels’ lawsuit over an alleged past affair with Trump, Michelle Wolf’s tasteless stand-up routine at the White House correspondents’ dinner, North and South Korea’s détente, the ongoing staff shakeups within the Trump administration—with each new script following on the heels of the last, never any let-up, never any relief from the constant melodrama.
The players come and go, the protagonists and antagonists trade places, and the audience members are forgiving to a fault, quick to forget past mistakes and move on to the next spectacle.
All the while, a different kind of drama ...
by Richard Resch
In a May 29, 2018 opinion, the Supreme Court of the United States (“SCOTUS”) held that the automobile exception to the Fourth Amendment does not permit law enforcement to enter the curtilage of a home, without a warrant or consent, in order to search a vehicle located therein.
On two occasions, a person riding an orange and black motorcycle with an extended frame eluded police officers who attempted to conduct a traffic stop. Investigators observed a motorcycle matching that description on the Facebook page of Ryan Collins. Officer David Rhodes believed that the motorcycle was stolen and located at the top of the driveway of his girlfriend’s house.
Rhodes drove to the house, parked on the street, and observed what appeared to be the motorcycle in question covered with a white tarp. Without a search warrant, Rhodes walked onto the property and removed the tarp. He then performed a search of the license plate and VIN numbers, which confirmed that the motorcycle was stolen. He then got back into his patrol vehicle and waited for Collins to return.
Upon his return, Collins admitted the motorcycle was his and that he purchased it without title. Rhodes then placed ...
by Steve Horn
The more things change, the more they stay the same. That’s a truism to many observers of history and politics, but in the orbit of the U.S. criminal legal system, it’s literally governed by precedential decisions.
So, when news broke early this year about U.S. Customs and Border Protection (“CBP”) agents working alongside the company Greyhound to perform warrantless searches on its buses to sniff out people ICE agents think might be undocumented immigrants, something about that fact pattern seemed awfully familiar. Enter: the 1991 U.S. Supreme Court case, Bostick v. Florida.
The Bostick ruling — and everything that followed it — is key. Under 8 U.S.C. § 1357(a)(3), CBP has a 100-mile range extending from the border in which to conduct warrantless searches of any vehicle passing through that territory.
That 100-mile range, criticized as too broad by the American Civil Liberties Union (“ACLU”), was deemed “a reasonable distance from any external boundary of the United States” under that statute. The ACLU derisively calls the 100-mile range, in which two-thirds of the U.S. population lives, a “Constitution-Free Zone.”
But the reality: Greyhound buses have long been ...
by Derek Gilna
The federal Drug Enforcement Agency (“DEA”) has contributed to the opioid crisis by more than tripling the number of individuals and organizations licensed to distribute controlled substances in the past 12 years, according an investigation by The Daily Caller News Foundation’s Daily Caller website. In 2006, the number of licensed dispensers was 510,000, but by 2018, the number had ballooned to 1.7 million.
In that same period, the number of individuals who have died from opioid overdoses has skyrocketed to thousands a year and been described as an epidemic by the U.S.
However, perhaps the federal government should look more closely at the policies and practices of the DEA, which has provided licenses to many questionable individuals.
Included in the licensees, according to the Daily Caller, was a dentist, who said he had provided opiates to an “outlaw motorcycle gang,” despite previous brushes with the law for drug-law violations. It also reported the DEA “has been issuing controlled substance licenses to drug dealers, drug addicts, convicted felons and dead people, which is just one of the many things that [have] fueled the current crisis.”
Another physician, who distributed cocaine in 1981, escaped ...
by Dale Chappell
Where the evidence was lacking and the jury could only speculate as to the defendant’s guilt, the Supreme Court of Louisiana reversed the defendant’s conviction and entered a judgment of acquittal, holding that a jury may not “speculate” on a person’s guilt.
Darryl Jones and two co-defendants were found guilty by a jury of the second-degree murder of one of their drug associates, after the victim was found on the side of a road with two gunshot wounds.
A witness who heard the shots said a vehicle matching Jones’ was seen speeding from the scene, and a local gas station video showed one of the co-defendants with Jones’ vehicle around the same time as the shooting.
Jones denied any involvement. He told police the victim had been at his house earlier that evening, but never returned after he left.
Jones’ girlfriend and another friend of his corroborated his story that the two co-defendants had taken Jones’ car, but Jones stayed at home all night.
Jones’ friend had loaned a phone to one of the co-defendants, and cellphone records showed that phone was near the crime scene and was used to call Jones and the victim. That phone ...
by Christopher Zoukis
Risk assessment software is all the rage in criminal justice circles. Programs such as COMPAS — Correctional Offender Management Profiling for Alternative Sanctions — are hailed as the ideal method for answering the all-important question: Will a given individual reoffend?
Algorithms and data, after all, are (supposedly) unbiased, faster, and more accurate ways to make this prediction. At least, that’s the argument. In reality, research is increasingly showing that computerized risk-assessment systems aren’t all they are cracked up to be. In fact, a new report authored by Dartmouth computer science professor Hany Farid and honors computer science student Julia Dressel indicates that untrained humans are better at predicting recidivism than the COMPAS system — even when they are given less information than the computer.
Farid and Dressler also found that the software had high levels of bias.
“People hear words like ‘big data’ and ‘machine learning’ and often assume that these methods are both accurate and unbiased simply because of the amount of data used to build them,” said Dressler, whose senior undergraduate honors thesis is the basis of the report, “The Accuracy, Fairness, and Limits of Predicting Recidivism,” published in the Journal of Science ...
In May 2018, jurors in a Newton County Circuit courtroom awarded $600,000 to a man who spent 17 years in a Missouri prison before his conviction was overturned by that state’s supreme court.
Dwight D. Laughlin won the verdict in a malpractice lawsuit against his public defender, Dewayne Perry, and Ellen Flottman, the attorney who handled his appeal. A third attorney who had represented Laughlin, James Martin, was cleared of liability in the matter.
Laughlin’s suit, filed by attorney William Fleischaker in 2011, argued the lawyers who had represented him in his 1993 post office burglary case failed to analyze jurisdictional issues related to his prosecution and subsequent conviction as a persistent offender.
The suit alleged that had Laughlin’s arrest been prosecuted as a federal crime based on an exception to a law that classified the Neosho Post Office, in particular, as a “building erected or acquired by the federal government prior to 1940 and remaining in continuous use by the government” and thus subject only to federal jurisdiction, Laughlin would likely have only faced a four-year sentence.
“Both of [Laughlin’s attorneys] thought (the law intended) concurrent jurisdictions — that it could have been prosecuted in state court or ...
by Derek Gilna
Civil forfeiture, under fire at the state and federal levels the past two years, has faced the spotlight in the city of Denver, Colorado, where a particularly burdensome civil ordinance has resulted in millions of dollars of revenue flowing to the city from largely underserved people.
Based upon a “Public Nuisance Abatement Ordinance,” it provides a “legal” tool for that city to confiscate automobiles and other property items even when the owner is found innocent of any crime.
Defendants can theoretically request a hearing in front of a judge to avoid this result. However, defense attorneys say that request is meaningless, given the low barrier for the prosecution in proving its case, which could easily result in the defendant losing his property and being assessed a substantial fine. To avoid this result, many defendants sign a stipulation, effectively agreeing to pay a “ransom” to the city to retrieve their property.
Greg Rawlings, a former city attorney who handled public nuisance prosecutions, and now a defense attorney, says that civil hearings are “meaningless. No one wins civil hearings on that. The standard of proof is too low.”
Not so, says current city prosecutor Kristin Brand, “It’s ...
by Richard Resch
The Supreme Court of Pennsylvania adopted a new rule governing nonconsensual entry into a residence to effectuate an arrest warrant. The Court rejected the constitutional framework utilized by lower state courts that differentiated between a third-party’s residence and that of the subject of an arrest warrant, which mandated a search warrant for nonconsensual entry into the former but not the latter. The Court announced that a search warrant is now required to enter any residence to carry out a search and arrest.
A parolee named Earnest Moreno absconded from a halfway house in Philadelphia. An arrest warrant was issued for him. Authorities believed 4745 North 2nd Avenue was his residence and attempted to execute the arrest warrant at that location. In fact, it was the residence of his half-brother, Angel Romero, and his wife, Wendy Castro. While searching the residence for Moreno, investigators noticed a large number of marijuana plants in the basement. They subsequently obtained a search warrant for the premises and recovered evidence of a large-scale marijuana-growing operation.
Romero and Castro were charged with several drug offenses. They both filed motions to suppress the evidence. At the suppression hearing, the lead agent testified that ...
by David Reutter
The Supreme Court of Mississippi held that neither it nor an appellate court sits as a “thirteenth juror” when reviewing a motion for new trial. The Court clarified that in a court’s appellate capacity it does not reweigh evidence, assess witness creditability, or resolve conflicts between evidence.
That pronouncement came in the reversal of a Court of Appeals judgment that vacated the conviction of Marlon Little. The conviction stemmed from the armed robbery of David Ellis.
Ellis was the sole witness, and his identification of Little in a photo-lineup was in conflict with the initial description of his attacker that he gave to police. Nevertheless, Little was convicted and sentenced to 30 years in prison. He filed a post-trial motion for a new trial, arguing that his conviction was against the weight of the evidence. It was denied, and he appealed.
On appeal, the Court of Appeals described its appellate posture as that of “thirteenth juror.” In that role, “if it disagrees with the jury’s resolution of conflicting testimony, the proper remedy is to grant a new trial.” The appellate court found that Ellis’ initial identification conflicted with Little’s “actual physical attributes, including age and ...
by Christopher Zoukis
On September 15, 2017, 18-year-old Anna Chambers was taken into custody by two NYPD detectives on suspicion of smoking marijuana. According to Chambers, the detectives handcuffed her, led her into the back of an unmarked van with tinted windows, and raped her repeatedly. About an hour later, the detectives dropped her off, where surveillance cameras captured her slowly pacing up and down a dark street with her arms wrapped around her chest.
After borrowing a cellphone and calling friends, Chambers and her mother went to the hospital and reported the assault. A rape kit came back positive for semen from detectives Eddie Martins, 37, and Richard Hall, 33, two Brooklyn narcotics cops. Both Martins and Hall have been charged with rape, kidnapping, bribery, and official misconduct and have resigned from the force. The former cops also face a federal civil rights lawsuit by Chambers.
Given the fact that their DNA was found inside the teenager, Martins and Hall are not denying a sexual encounter. Instead, they are mounting a defense that has shocked the nation: They claim that the sexual activity was consensual, and therefore they did nothing wrong.
New York is, in fact, one of 35 ...
by Dale Chappell
A court must not automatically consider any single factor to be dispositive when deciding whether to deny or grant pretrial release, but must consider several factors on the record to determine if an accused must be detained, the New Mexico Supreme Court held.
Mariah Ferry, having been charged with first-degree murder, was granted pretrial release after the court determined that, while the crimes were “gruesome and heinous,” that alone was not enough to keep Ferry in jail until trial. The State disagreed and appealed that decision to the New Mexico Supreme Court.
On appeal, the State argued that the district court erroneously concluded that the nature of the charges, “no matter how serious the crime,” are “never sufficient” to prove a defendant’s future dangerousness and thus denial of pretrial release. The Supreme Court observed that is one reasonable interpretation of the district court’s ruling. However, another reasonable interpretation is that it did consider the seriousness of the charges and nevertheless concluded that certain conditions of release could still reasonably protect the community.
New Mexico law provides that bail may be denied by a court if the State proves “by clear and convincing evidence” that the ...
by Dale Chappell
“Finality” of an out-of-state conviction to support an enhanced sentence depends on whether Texas State law would consider that prior conviction “final,” not on the particular state of conviction, the Court of Criminal Appeals of Texas held, finding a suspended sentence in California cannot serve as the basis for an enhanced sentence under the habitual-offender provision of Texas Penal Code § 12.42(d).
Jeremy Pue filed an application for writ of habeas corpus in the Court of Criminal Appeals, claiming that his enhanced sentence based on his prior California suspended sentence for a controlled substance offense was not “final” and thus cannot serve to enhance his sentence as a habitual offender. Because it exceeded the statutory maximum, absent the enhancement, Pue argued that his sentence was illegal. The Court agreed and vacated his sentence.
A claim that a sentence is illegal because it exceeds the statutory maximum for the offense is cognizable in a writ of habeas corpus and may be raised at any time, even if it was not raised on direct appeal. Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). Texas Penal Code § 12.42(d) provides that ...
by Christopher Zoukis
The Durham, North Carolina City Council faced an unusual debate at a recent meeting. Activist groups urged the council to prohibit city police officers from participating in police training exchanges with Israel. According to the groups, such training promotes the militarization of police forces. Council members agreed and voted to prohibit the exchanges.
Given the growing popularity of paramilitary-style police forces in America, the council’s 6-0 vote to ban such training was surprising. But the city council members made their position on the matter clear.
“The council opposes international exchanges with any country in which Durham officers receive military-style training since such exchanges do not support the kind of policing we want here in the city of Durham,” the council said in a statement.
Both the mayor and police chief believed that the council got the vote wrong. Mayor Steve Schewel said the council was given “completely false information,” and for her part, Chief Cerelyn “CJ” Davis said her office has made “no effort . . . to initiate or participate in any exchange to Israel, nor do I have any intention to do so.”
The activist groups, Jewish Voice for Peace and the Durham Palestine Coalition ...
by Christopher Zoukis
The United States Court of Appeals for the Seventh Circuit affirmed a district court’s ruling that evidence obtained from an unlawfully extended traffic stop must be suppressed. The March 7, 2018, decision upheld the lower court’s ruling that the police officer did not have the reasonable suspicion necessary to extend the stop by the duration necessary to issue the traffic citations.
Mario Rodriguez-Escalera (“Rodriguez”) and his fiancée Blanca Moran were pulled over by Illinois State Trooper Kenneth Patterson. Patterson had observed their car abruptly switch lanes without using a turn signal. Moran was driving, so Patterson asked for her license, registration, and proof of insurance. He asked Moran to accompany him to the patrol car while he ran her information.
While Moran waited in the parked car, Patterson interrogated Rodriguez, who spoke little English. Rodriguez told Patterson that they were headed to Pennsylvania and gave him his Mexican ID card and driver’s license.
Patterson then returned to the patrol car to run Moran’s information. While in the car, Patterson questioned Moran. She told him that Rodriguez was her fiancée, that they had come from Los Angeles, and that they were headed to New York City for a ...
by Dale Chappell
It is plain error when a trial court fails to instruct the jury on the burden of proof for justifiable use of force and who carries that burden, even if the error was not preserved for review on appeal, the Supreme Court of Montana held December 19, 2017.
At his trial for misdemeanor assault, Lee Akers raised the affirmative defense that he had acted in self-defense during an altercation. A jury found Akers guilty of assault, and he appealed to the Montana Supreme Court.
On appeal, Akers raised for the first time that the trial court failed to instruct the jury that it was the State’s burden to prove beyond a reasonable doubt that he had not acted in self-defense, after he raised the affirmative defense of self-defense at trial. The State argued that since Akers did not raise the issue before, he failed to preserve it for review on appeal.
The Supreme Court disagreed, holding that the trial court’s failure to instruct the jury on the burden of proof was plain error and reviewable even if not preserved for appeal.
Generally, an appellate court does not address issues raised for the first time on appeal; however ...
by David Reutter
The Supreme Court of Utah held that the Board of Pardons and Parole (“Parole Board”) violated a prisoner’s due process rights by adjudicating him a sex offender. The designation as a sex offender was based on unproven allegations in a police report and a mistrial without conviction on the offense. The Court outlined the due process requirements to classify a prisoner who has never been convicted of a sex offense as a sex offender.
Michael Neese has never been convicted of a sex offense or adjudicated as a sex offender. That, however, did not stop the Parole Board from denying him a release date for parole based upon its determination that he is a sex offender who refused to participate in sex offender treatment.
After trial on a forcible sodomy charge ended in a mistrial, Neese pleaded guilty to two counts of obstruction of justice, one count of theft, and one count of burglary. He received a composite prison sentence of two to 30 years, and it was estimated he would be released in 2014.
The Parole Board at Neese’s original parole hearing deemed him a sex offender based upon the sodomy charge, refused to set a ...
by Dale Chappell
In a major decision that may affect thousands with a prior Florida drug trafficking conviction, the U.S. Court of Appeals for the Eleventh Circuit held that Florida’s drug trafficking statute under Fla. Stat. § 893.135 is indivisible and overbroad, and therefore not a “match” with its federal counterpart under the Controlled Substance Act (“CSA”).
After Natalia Cintron, a native of Argentina, was convicted for “trafficking in illegal drugs” under Fla. Stat. § 893.135(1)(c), the U.S. Department of Homeland Security began proceedings to deport her. When an immigration judge ordered her deportation, finding that Cintron’s conviction under § 893.135(1)(c) was a “drug trafficking crime” under the Immigration and Nationality Act (“INA”), Cintron appealed to the Board of Immigrations Appeals (“BIA”). The BIA found that § 893.135(1)(c) was divisible and that Cintron’s conviction qualified as a drug trafficking crime, requiring her deportation. Cintron appealed to the Eleventh Circuit.
The INA requires deportation of an alien who is convicted of an “aggravated felony,” which includes a “drug trafficking crime,” defined under the federal CSA as manufacturing, distributing, or possessing with intent to do so. Mere possession ...
by Christopher Zoukis
A new report from the Electronic Frontier Foundation (“EFF”) has revealed some disturbing facts about facial recognition systems, which are becoming very popular law enforcement investigative tools.
According to the February 2018 report, one in every two American adults is already in a law enforcement facial recognition database. And the systems are known for incorrectly matching blacks, young people, women, and other ethnic minorities more often than older, white men.
Facial recognition systems use computer algorithms to match a person’s face from a photo or video to an image stored in a database. According to the EFF, law enforcement has already used the technology at political protests and may soon combine facial recognition software with body cameras. There are few checks on the use of this powerful surveillance technology, and that has privacy advocates concerned.
“People should not have to worry that they may be falsely accused of a crime because an algorithm mistakenly matched their photo to a suspect,” said EFF senior staff attorney Jennifer Lynch, who authored the report. “They shouldn’t have to worry that their data will end up in the hands of identity thieves because face recognition databases were breached. They shouldn’t ...
by Dale Chappell
A search warrant with checkboxes generally describing the purpose of the warrant lacked particularity and probable cause and was an unconstitutional “general search warrant,” the Supreme Court of Missouri held. The Court affirmed the defendants’ motions to suppress all evidence seized in connection with the defective warrant.
After Jennifer Gauter and Phillip Douglass were accused of burglarizing a home, the Kansas City police applied for a search warrant to search their residence to check for the stolen items. The search warrant prepared by a detective had checkboxes that generally described the items to be seized and the reason for the warrant, including a checkbox authorizing officers to seize a “deceased human fetus or corpse, or part thereof.” The warrant also listed in detail some of the items that were allegedly stolen from the home. All of the boxes were checked, including the corpse box, and the judge approved the warrant.
Gauter and Douglass were charged with burglary in the second degree and felony stealing, after police recovered several of the items listed in the warrant, but not the corpse. The pair filed pretrial motions to suppress the evidence, arguing that the warrant was invalid because ...
by Dale Chappell
Probationers have a limited, but constitutionally protected, privacy interest that does not permit community correction officers (“CCO”) to conduct open-ended property searches. Instead, the warrantless search must be connected to a suspected violation of a probation condition, the Supreme Court of Washington held, settling a circuit split within the state.
After Curtis Cornwell failed to report to his CCO, a warrant was issued for his arrest. Police stopped Cornwell’s vehicle based solely on the warrant, and a CCO was called to search his property. The CCO found drugs in a bag in the vehicle, and Cornwell was arrested on new charges for the drugs, as well as the probation violation.
Cornwell moved to suppress evidence obtained during the search of his car. The trial court denied his motion, stating that any subjective expectation of privacy was not “objectively reasonable” since he was on probation and thus entitled to a reduced expectation of privacy.
At the trial, the CCO testified that he searched the vehicle “to make sure there’s no further violations of his probation.” He further testified that “if there’s anything in the vehicle, whether it is in a suitcase, clothing, I’m going to go through ...
Oliver Wiggins doesn’t drink. But that didn’t stop the NYPD cop who ran a stop sign and rammed Wiggins’ car from arresting him for driving while impaired.
After NYPD Officer Justin Joseph plowed into Wiggins on April 19, 2015, he claimed that the 33-year-old man had slurred speech, watery eyes, an odor of alcohol on his breath, and was seen swaying. Despite the fact that a breathalyzer test came back negative and a blood test showed no alcohol in his system, Joseph arrested Wiggins on charges of DWI.
Wiggins, who was injured in the crash, had his license suspended and was forced to pay the repair bill. His insurance wouldn’t cover the damage caused when Officer Joseph hit his car because of the DWI charges.
Three months later, prosecutors, who had no evidence of a crime, dropped the case. Wiggins hired attorney Scott Rynecki and sued the city, Joseph, and Officers Jason Conway, Greg Gingo, Matthew Sabella, and Chris Connor. The case settled for just under $1 million.
City officials denied liability and said they settled in order to avoid trial. “Settling this case was in the best interest of the city,” a Law Department representative said.
Wiggins said ...
by John W. Whitehead, Commentary, The Rutherford Institute
“We’re run by the Pentagon, we're run by Madison Avenue, we're run by television, and as long as we accept those things and don't revolt we'll have to go along with the stream to the eventual avalanche.... As long as we go out and buy stuff, we're at their mercy… We all live in a little Village. Your Village may be different from other people's Villages, but we are all prisoners.”
— Patrick McGoohan
First broadcast in America 50 years ago, The Prisoner—a dystopian television series described as “James Bond meets George Orwell filtered through Franz Kafka”—confronted societal themes that are still relevant today: the rise of a police state, the freedom of the individual, round-the-clock surveillance, the corruption of government, totalitarianism, weaponization, group think, mass marketing, and the tendency of humankind to meekly accept their lot in life as a prisoner in a prison of their own making.
Perhaps the best visual debate ever on individuality and freedom, The Prisoner (17 episodes in all) centers around a British secret agent who abruptly resigns only to find himself imprisoned and interrogated in ...
by Dale Chappell
A defendant who “unequivocally” invoked his right to self-representation at trial and was denied that right when the judge ignored his requests got a new trial when the Supreme Court of Kansas held that it constituted a “structural error.”
Josiah Bunyard was “very active” in his defense. At a pretrial hearing before his trial was about to begin, he noticed his lawyer was overlooking something he believed to be crucial, so he spoke up. “You Honor, could I please be heard?” he interrupted. “Mr. Bunyard, you have appointed counsel ... so you’re either having [counsel] argue this case—or you are representing yourself? Which is it?” the judge responded. “I’ll represent myself, if that’s the choice,” Bunyard replied.
The court recessed to let Bunyard talk to his lawyer, and when the court reconvened, Bunyard stated, “I want it on the record I wish to represent myself unequivocally.” The judge refused to acknowledge Bunyard’s demand and told him he had to “file a proper motion” to be heard in court. Since it was Friday, Bunyard said, “there’s no mail going out for the weekend. There’s no way I can get it” to the court. The ...
by Matt Clarke
On April 25, 2018, the Supreme Court of New Jersey held that a trial court erred when, on the eve of trial, it permitted the State to amend the indictment to increase a charge from a third-degree to a second-degree felony.
Following surveillance on a suspected drug dealer, police pulled over Todd Dorn’s vehicle and told him they were in the process of obtaining a search warrant for the vehicle and his home. He consented to a search of both locations. Thirty-five glassine bags containing heroin and 2.65 ounces of marijuana were found in his home.
Dorn was indicted on multiple counts, including second-degree possession of heroin with intent to distribute within 500 feet of public housing, a public park, or public building in violation of N.J.S.A. 2C35-7.1 (count one) and third-degree possession of marijuana with the intent to distribute within 500 feet of public housing, a public park, or public building in violation of N.J.S.A. 2C35-7.1 (count two).
Dorn rejected a pre-trial plea bargain offer of five years imprisonment with two-and-a-half years parole ineligibility. The day before the trial, the prosecutor moved to amend the indictment to ...
Seattle’s mayor and city attorney announced plans in February 2018 to request court dismissal of all misdemeanor marijuana possession convictions obtained in city courts before the drug’s legalization in 2012. When the convictions are vacated or dismissed, they will disappear from the records of hundreds of people.
Mayor Jenny Durkan, who once prosecuted cases in Seattle’s municipal court system, said the convictions disproportionately affected traditionally marginalized groups, such as poor communities of color. Durkan added that erasing the convictions “is really a necessary step to right the wrongs” of a failed war on drugs. Moreover, erasing pot convictions will have real-world implications for Seattle’s most vulnerable populations.
“It could be a barrier to housing, to getting credit, to getting good jobs and an education,” Durkan said.
City attorney Pete Holmes estimated that more than 500 convictions would be cleared. While the city can ask the courts to vacate the convictions, the final decision is made by a judge.
“However,” said Holmes, “this is an instance where the prosecutor is bringing the motion to vacate and dismiss and [in] those instances there is very little discretion on the part of the judge.”
Seattle’s plans follow in the wake ...
by Dale Chappell
A defendant trying to break free of an officer’s grip while already under arrest and in handcuffs was not “resisting arrest” because the defendant was not trying to prevent his arrest, the Supreme Court of Missouri held.
Six officers surrounded Daniel Ajak and put him under arrest by placing him in handcuffs and making him sit in a chair in his kitchen after a domestic disturbance at his house. As Ajak continued to verbally protest that he was the victim, he was moved to a police car to be taken to jail. On the way out to the car, he tried to break free of the officer’s grip while still in handcuffs and spit on the officer. In addition to the domestic assault charges, police added a resisting arrest charge. A jury found Ajak guilty of only the resisting arrest charge, and he was sentenced to 280 days in jail. He appealed, and the Missouri Supreme Court granted transfer after the court of appeals affirmed.
The question before the Supreme Court was whether Ajak actually resisted arrest when he tried to break free, after having been put in handcuffs and forced by the officers to sit in ...
by Christopher Zoukis
The United States Court of Appeals for the Fifth Circuit reversed a district court’s denial of a former prisoner’s 28 U.S.C. § 2255 petition, in which he claimed that his guilty plea to charges of failure to register as a sex offender was the result of ineffective assistance of counsel.
The January 26, 2018, ruling found the petitioner’s guilty plea invalid and granted § 2255 relief.
Adam Shepherd exposed himself to two minor girls in Arizona in 2002. He was charged with one count of indecent exposure to a minor and one count of public sexual indecency to a minor. Pursuant to a plea agreement, the first count was dropped, and Shepherd pleaded guilty to attempted public sexual indecency. He received a suspended sentence, lifetime probation, and a requirement to register as a sex offender.
Shepherd moved to Texas in 2011, but he did not register as a sex offender, believing that he was not required to do so under Texas law. After an investigation by the U.S. Marshals Service and a determination by the Texas Department of Public Safety (“DPS”) that Shepherd was required to register, he was arrested and charged with failure ...
by Dale Chappell
Where is the “war on cops” claimed by the country’s leaders? According to the Federal Bureau of Investigation’s annual report on law enforcement officers killed in the line of duty across the country, 93 cops died in the line of duty in 2017, and 118 were killed in 2016. However, more than half were killed in accidents, and half of those were not wearing seatbelts. The data were compiled from local, state, federal, tribal, and campus police agencies.
Being a cop is not even in the top 10 most dangerous jobs in the United States. While some officers unfortunately die while on duty, the data clearly show that there is no “war on cops” as some falsely claim. In fact, being a federal law enforcement officer was one of the safest jobs in the country the past two years: None were killed in the line of duty in 2017, and only one was killed in 2016.
Yet, Congress still wants to make the killing of a cop a “hate crime.” The facts do not support this push. More cops were killed in previous years than the last two years. Clearly, line of duty deaths for cops ...
by Dale Chappell
“One who is his own lawyer has a fool for a client,” U.S. Supreme Court Justice Blackmun once opined.
Nevertheless, a circuit judge may deny a defendant’s request to be his own lawyer but only if the court finds he has not knowingly, intelligently, and voluntarily waived his right to counsel, the Supreme Court of South Carolina held, clarifying when a court may deny such a request.
According to the circuit court, there was no question that Lamont Samuel was “bright enough, educated enough” to waive his right to counsel and represent himself at his murder trial. However, the court denied Samuel’s motion to represent himself, after the lawyer Samuel claimed was helping him told the court that he was not doing so. Concluding that Samuel had lied, the court determined that he had violated the Rules of Professional Conduct and was trying to manipulate the system. The court denied his motion to proceed pro se. He was convicted and sentenced to 50 years in prison. Samuel appealed, arguing the circuit judge erred in denying his right to self-representation.
The court of appeals affirmed. The South Carolina Supreme Court granted certiorari and reversed the court ...
by Christopher Zoukis
The Supreme Court of Pennsylvania vacated a convicted murderer’s death sentence after concluding that the prisoner suffered from an intellectual disability, rendering him ineligible for the death penalty. The February 5, 2018, order replaced the defendant’s death sentence with a sentence of life imprisonment.
James VanDivner was convicted of first-degree murder in the shooting death of his fiancée, Michelle Cable. Prior to trial, he filed a motion to preclude the Commonwealth from seeking the death penalty. VanDivner argued that he is intellectually disabled and thus not subject to the death penalty because of the U.S. Supreme Court’s opinion in Atkins v. Virginia, 536 U.S. 304 (2002). The Atkins Court held that the Eighth Amendment prohibits imposition of the death penalty upon intellectually disabled criminals.
The trial court denied VanDivner’s motion, and he was sentenced to death. He filed a petition for relief under Pennsylvania’s Post Conviction Relief Act (“PCRA”) in which he challenged the trial court’s denial of his motion, arguing that his trial counsel was ineffective for failing to properly pursue his Atkins claim. The trial court denied VanDivner relief. He appealed, and the Pennsylvania Supreme Court reversed.
In Commonwealth v. Miller, 888 A ...
by Dale Chappell
The Supreme Court of Pennsylvania announced a new rule allowing post-sentencing motions raising ineffective assistance of counsel (“IAC”) claims where only a fine but no prison or probationary time is imposed.
After being convicted by a jury and sentenced to pay restitution and a fine, Edward Delgros filed a post-sentencing motion raising IAC claims. The trial court, however, ruled that Delgros was not entitled to relief because his IAC claims could only be raised under the Post Conviction Review Act (“PCRA”), despite not being able to use the PCRA since he was not sentenced to time in custody. Delgros appealed.
Delgros pointed out to the superior court on appeal that he had no avenue to raise his IAC claims, but the Pennsylvania Supreme Court, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), left open an option for review where “good cause” is shown. The court, though, disagreed and ruled that the Holmes exception applied only to petitioners eligible to file under the PCRA, which requires that a petitioner is “currently serving a sentence of imprisonment, probation, or parole.” 42 Pa.C.S. § 9543(a). The Pennsylvania Supreme Court granted allocatur to address whether ...
by Dale Chappell
Conduct that was “too remote” from the cause of death could not support criminally negligent homicide, the Delaware Supreme Court held, reversing a juvenile’s adjudication.
Tracy Cannon and Alcee Franklin-Johnson (pseudonyms), two 16-year olds, took their argument into a school bathroom where things turned physical. In less than one minute, it was over, and two hours later, Alcee was dead. However, the death was not from any injury sustained during her altercation with Tracy. Instead, she died from a very rare heart condition that even she didn’t know she had.
Nevertheless, Tracy was charged with criminally negligent homicide and was adjudicated delinquent in family court after a five-day bench trial. The judge, as the fact-finder, pinned blame on Tracy because her attack on Alcee was carried out “in the close confines of the school bathroom stall, which posed [a] risk of potential catastrophic physical harm including death by virtue of the tile floor, walls and fixtures.” The court also said Tracy was aware that her attack on Alcee would result in “physical and emotional trauma” that could result in her death and ruled that the evidence established beyond a reasonable doubt that Tracy had caused Alcee’s ...
by Christopher Zoukis
The United States Court of Appeals for the Ninth Circuit ruled on February 9, 2018, that Younger v. Harris, 401 U.S. 37 (1971) does not require a U.S. district court to abstain from hearing a petition for a writ of habeas corpus challenging the conditions of pretrial detention in state court.
Erick Arevalo was arrested and charged with crimes related to a domestic dispute on July 1, 2017. Five days later, a California trial court set his bail at $1.5 million. On August 10, 2017, Arevalo filed a petition for a bail hearing or reduction, arguing that his pretrial release conditions were unconstitutional. In support of his petition, Arevalo noted that he had no criminal history, had never failed to appear, was a low risk for non-appearance, and would live with a church member if released.
The trial court held a hearing and lowered Arevalo’s bail to $1 million. Arevalo thought that this remained unconstitutional and filed a petition for writ of habeas corpus before the California Court of Appeal. Interestingly, the State agreed with Arevalo, refused to defend the trial court’s bail conditions and argued that he deserved a hearing with specific consideration ...
In a land where a person can be thrown in jail for wanting to file a complaint against the cops, that is called a “police state.” Here in the United States, the Constitution protects those who want to file a complaint against the police. Except in Louisiana.
In Louisiana, a person can be thrown in jail, legally, for saying to the police, “I’m calling your supervisor. I’m gonna get you fired.” Louisiana calls this “intimidation of a public official,” which is a felony that carries up to five years in prison. And the intimidation does not even have to amount to a “threat.”
When William Aubin Jr. said those exact words to Deputy William Durkin, who used vulgar language and called Aubin obscene names, he was arrested and charged with intimidating a public official and taken to jail. The same thing happened to Travis Seals, who said he wanted to file a complaint after being pepper-sprayed while he was handcuffed. He ended up with the new felony charge.
Despite one federal judge saying the law is “patently and obviously unconstitutional,” and another saying it is egregiously unconstitutional, it still stands. See Aubin v. Columbia Cas ...
by Christopher Zoukis
The website Techdirt.com reported on a Department of Justice Inspector General’s report looking into how the FBI uses classified tools meant for national security investigations in run-of-the-mill cases. It seems that government-developed software hacks, malware, and surveillance equipment—classified, national security tools—are finding their way across a “line in the sand” meant to keep them out of regular domestic investigations.
CLN reported on law enforcement’s extensive use of cell-site simulator technology in its July 2018 cover story. Colloquially known as stingrays, these devices were originally developed by the Pentagon for use in national-security operations overseas. Now the devices are used to hijack and track the cellphones of unwitting individuals suspected of everything from theft of chicken wings to robbery.
Techdirt profiled two other high-tech tools that have been co-opted for domestic investigations.
One is a secret tool developed by a third-party vendor, which the FBI reportedly used to decrypt the iPhone of the San Bernardino shooter.
Another one, a malware exploit, was reportedly used to reveal dark web child pornography site users. It was unclassified but the Bureau attempted to classify it for “national security reasons.”
Use of classified and secret national security tools to target ...
Proving that it can be done, Judge Coleen Kollar-Kotelly declined the Government’s request for an emergency stay in this case and, despite seemingly insurmountable evidence against her, affirmed the Magistrate Judge’s order releasing the Defendant, Tiffany Henry, on bail in this drug case.
Hayes, along with two other defendants, were charged with various crimes arising out of a conspiracy to distribute, and possess with intent to distribute, various quantities of marijuana and cocaine. After a detention hearing, and over the Government’s objection, the Magistrate Judge ordered the release on bail of Henry and one of her co-defendants. The Government then filed the instant motion for an emergency stay, arguing that, based on an assortment of damaging evidence against Henry, no condition or combination of conditions imposed on Henry during pre-trial release could reasonably assure the safety of other people and the community.
In support of its emergency motion, the Government proffered evidence that Henry “maintained a social media profile advertising the sale of marijuana and THC-infused products, that an undercover officer of local law enforcement had arranged to purchase certain such products from Defendant Henry, and that a search of Defendant Henry’s apartment . . . had yielded a large quantity of marijuana ...
by Matt Clarke
Around the nation, powerful lobbying groups composed of associations of prosecutors are influencing state legislatures to reject certain laws, regardless of how popular the proposed laws are with the electorate.
In his January 2018 State of the State address, New York Governor Andrew Cuomo called for justice reform legislation that would limit civil-asset forfeiture, revamp discovery, reduce trial delays, and significantly lessen the use of cash bail. To underscore his commitment, he told the story of Kalief Browder who, at age 16, was jailed for allegedly stealing a backpack.
Browder, who maintained his innocence, was unable to post the $3,000 cash bond, so he spent three years in New York City’s notorious Rikers Island jail awaiting trial. There, he was abused by other prisoners and staff and was frequently placed in solitary confinement. The charges were dropped, but the trauma remained. Two years after he was freed, Browder took his own life.
During the address, Cuomo told Browder’s brother, who was an invited guest, “I want you to know that your brother did not die in vain. Sometimes, the Lord works in strange ways—but he opened our eyes to the urgent need for real reform.... We ...
“How’m I doing?” The old saying of former New York Mayor Ed Koch just became the motto of the New York Police Department (“NYPD”).
Now getting questioned by an NYPD officer includes a business card directing the person to a website where one can rate his or her encounter with the NYPD.
The cards, which will eventually be provided to all 36,000 NYPD officers, gives the officer’s name, rank, and badge number and will be handed to any person who is the subject of “law enforcement activity” that does not end in an arrest or summons.
There also is a website about the card, where one can file a Freedom of Information Law request to obtain the body camera footage of the encounter.
Not all are happy about the PR stunt. “Who’s paying for this?” asked a police source. The cost to taxpayers for the first year will be $6 million.
Another concern was about handing an officer’s personal information to potentially harmful people. “You have gang members out there,” said the source. “You shouldn’t be making it easier for perpetrators to track down cops.”
The program is part of the city’s Right to Know Act ...
by Betty Nelander
One Vermont county is using the muscle of the law to help curb the deadly opioid epidemic.
Chittenden County State’s Attorney Sarah George announced that her office will no longer prosecute “any citations or arrests for Misdemeanor Possession of Buprenorphine and related compounds such as Suboxone,” noting that “these drugs are intended to be life-saving.”
In her June 13, 2018, memo to the Chittenden County chiefs of police, George said the drugs “block the craving for heroin or other street opioids, minimize the chance of relapse, and help individuals reduce or abandon their use of heroin or other opioids, which in return, reduces crime, the likelihood of fatal overdoses and recidivism.”
Such therapy has earned the support of U.S. Food and Drug Commissioner Scott Gottlieb and many medical professionals in the federal health bureaucracy. But law enforcement draws a line at black market addiction-fighting drugs.
Reason.com points out that users who “possess, share, buy, and sell drugs proven to fight heroin and opioid addiction are breaking the law if they don’t have a prescription.”
Maryland’s Department of Public Safety and Correctional Services recently tried to restrict shipments of books to prisoners ...
Australia: A Facebook post by the New South Wales Police warned concert-goers headed for the Above & Beyond music festival June 9, 2018, in Sydney that they would be met at the venue gates by drug-sniffing dogs on patrol. The post, by South West Metropolitan Region Commander, Assistant Commissioner Peter Thurtell, stated: “Police will exclude any person from the venue that the drug dog indicates has or who has recently had drugs on them, regardless of whether drugs are located.” Activist Tom Raue and two other festival ticket holders unsuccessfully sued for an injunction to stop what they said was an overreach of police powers that used the dogs as an unreliable tool. According to government statistics from 2011, false positive dog alerts occurred in 80 percent of cases, with 11,248 of 14,102 analyzed cases resulting in no finding of drugs. Festival presenter Symbiotic said in a Facebook post, “Refunds will be made available to anyone that is denied entry to the event due to this circumstance.”
District of Columbia: On April 30, 2018, D.C. police officer Nathan Clinkscale, 25, was discovered in the bedroom of a teenage girl he’d met on a dating website ...
by Dale Chappell
Weekends in jail count as time “in prison,” the U.S. Court of Appeals for the Ninth Circuit held, granting immediate release for a prisoner serving a supervised release revocation term in prison.
When Wallace Shimabukuro violated his federal supervised release for the third and final time, the district court sentenced him to 17 months in prison and ended his supervised release. The court credited Shimabukuro with the 18 months he served for his first violation and the one month he did for the second, but the judge refused to count the 50 consecutive weekends he served as part of that second violation. Shimabukuro appealed, arguing that counting the weekends he spent in jail counted, and the most he could have received on his third violation was 12 months in prison. The Court of Appeals agreed and ordered his release.
Under 18 U.S.C. § 3583(e) that was in effect at the time of Shimabukuro’s original criminal offense, there was a cap on the amount of prison time the court could have given Shimabukuro for his supervised release violations. That version required the court to aggregate all of the prison time for his collective ...