Skip navigation
A Night To Remember

Criminal Legal News: August, 2018

Issue PDF
Volume 1, Number 9

In this issue:

  1. Courts Have Made Social Media a Landmine for Defendants. Could It Change Soon? (p 1)
  2. Non-Unanimous Jury Verdicts Give Prosecutors ‘Awesome Power’ and Have Racist Roots (p 11)
  3. Dial T for Tyranny: While America Feuds, the Police State Shifts Into High Gear (p 12)
  4. SCOTUS: Warrantless Invasion of Curtilage to Conduct Search Unconstitutional (p 13)
  5. The Long, Dark History of Law Enforcement’s Warrantless Bus Searches (p 14)
  6. Daily Caller Investigation Lays Opiate Crisis at Feet of DEA (p 17)
  7. Risk Assessment Software: Biased and No Better Than Human Behavior Prediction (p 18)
  8. Louisiana Supreme Court: Jury May Not Speculate on Guilt When Evidence Is Lacking (p 18)
  9. $600,000 Awarded Missouri Man in Legal Malpractice Verdict After 17 Years in Prison (p 19)
  10. Pennsylvania Supreme Court Announces Search Warrant Required for Nonconsensual Entry into Any Residence to Carry Out Arrest Warrant (p 20)
  11. Denver Under Fire For Law That Critics Describe as Legalized ‘Car Stealing’ (p 20)
  12. Mississippi Supreme Court Clarifies that Appellate Courts Never Serve as ‘13th Juror’ for Motion for New Trial (p 21)
  13. #Policetoo: 35 States Allow ‘Consensual’ Sex Between Police and Detainees (p 22)
  14. New Mexico Supreme Court: Seriousness of Charged Crime Itself Not Sufficient to Deny Defendant Pretrial Release (p 22)
  15. Texas Court of Criminal Appeals Announces ‘Finality’ Under Sentence Enhancement Provision for Out-of-State Convictions Governed by Texas Law (p 23)
  16. Durham, North Carolina, Opts Out of Military-Style Training for Police (p 23)
  17. Seventh Circuit Affirms Suppression of Evidence Because Traffic Stop Unreasonably Prolonged (p 24)
  18. Montana Supreme Court Holds Failure to Instruct Jury on State’s Burden of Proof is Plain Error (p 25)
  19. Eleventh Circuit Holds Florida Drug Trafficking Statute Indivisible and Overbroad for Removal Under Immigration and Nationality Act (p 26)
  20. Utah Supreme Court: Procedural Due Process Violated Where Failure to Participate in Sex Offender Treatment Program Used to Deny Parole to Prisoner Not Convicted of Sex Offense (p 26)
  21. Biased Facial Recognition Systems Are Coming to a Law Enforcement Agency Near You (p 27)
  22. Missouri High Court Holds Checkbox-Style Search Warrant Constitutes an Unconstitutional General Warrant (p 28)
  23. Washington Supreme Court: Nexus Between Property Searched and Probation Violation Required for Warrantless Search of Probationer’s Property (p 28)
  24. $1 Million Paid by NYC to Settle False Arrest Claim (p 29)
  25. Government Eyes Are Watching You: We Are All Prisoners of the Surveillance State (p 30)
  26. Kansas Supreme Court: Judge’s ‘Thwarting’ of Defendant’s Right to Self-Representation was Structural Error Requiring Reversal of Convictions (p 32)
  27. Seattle to Toss Old Pot Convictions (p 33)
  28. New Jersey Supreme Court: Substantive Error to Amend Indictment to Change Degree of Felony on Eve of Trial (p 33)
  29. Missouri Supreme Court Clarifies No Resisting Arrest Charge Once Arrest is Completed (p 34)
  30. Fifth Circuit Grants § 2255 Petition Challenging Failure to Register Conviction for Ineffective Assistance of Counsel (p 34)
  31. FBI Data Reveal ‘War on Cops’ is Nonexistent (p 35)
  32. South Carolina Supreme Court Clarifies When Court Can Deny Right to Self-Representation; Orders New Trial (p 36)
  33. Pennsylvania Supreme Court Vacates Intellectually Disabled Prisoner’s Death Sentence (p 36)
  34. Pennsylvania Supreme Court Announces New Rule to Allow IAC Claims for Fine-Only Sentences (p 37)
  35. Delaware Supreme Court Reverses Criminally Negligent Homicide Because Conduct was ‘Too Remote’ from Cause of Death (p 38)
  36. Ninth Circuit: Younger Abstention Not Appropriate in Habeas Case Challenging Lack of Constitutionally Sufficient Bail Hearing (p 38)
  37. Is FBI Using Classified Tools for Everyday Investigations? (p 39)
  38. Legally Thrown in Jail for Wanting to File a Complaint Against Police (p 39)
  39. District Court Grants Bail in a Drug Case Over Government’s Typical Assertion That ‘No Condition or Combination of Conditions Would Reasonably Assure the Defendant’s Presence at Trial’ (p 40)
  40. Powerful District Attorney Lobbies Improperly Influence Law Making (p 40)
  41. NYPD Hands Out Business Cards So Suspects Can Rate Their Encounter with Cops (p 41)
  42. State Attorney in Vermont Won’t Prosecute Misdemeanor Opioid Treatment Drug Cases (p 41)
  43. News in Brief (p 42)
  44. Ninth Circuit Rules Weekends in Jail Count as Time ‘In Prison’ (p 42)

Courts Have Made Social Media a Landmine for Defendants. Could It Change Soon?

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 ...

Non-Unanimous Jury Verdicts Give Prosecutors ‘Awesome Power’ and Have Racist Roots

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 ...

Dial T for Tyranny: While America Feuds, the Police State Shifts Into High Gear

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 ...

SCOTUS: Warrantless Invasion of Curtilage to Conduct Search Unconstitutional

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 ...

The Long, Dark History of Law Enforcement’s Warrantless Bus Searches

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 ...

Daily Caller Investigation Lays Opiate Crisis at Feet of DEA

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 ...

Risk Assessment Software: Biased and No Better Than Human Behavior Prediction

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) ...

Louisiana Supreme Court: Jury May Not Speculate on Guilt When Evidence Is Lacking

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 ...

$600,000 Awarded Missouri Man in Legal Malpractice Verdict After 17 Years in Prison

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 ...

Pennsylvania Supreme Court Announces Search Warrant Required for Nonconsensual Entry into Any Residence to Carry Out Arrest Warrant

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 ...

Denver Under Fire For Law That Critics Describe as Legalized ‘Car Stealing’

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 ...

Mississippi Supreme Court Clarifies that Appellate Courts Never Serve as ‘13th Juror’ for Motion for New Trial

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. ...

#Policetoo: 35 States Allow ‘Consensual’ Sex Between Police and Detainees

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, ...

New Mexico Supreme Court: Seriousness of Charged Crime Itself Not Sufficient to Deny Defendant Pretrial Release

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 ...

Texas Court of Criminal Appeals Announces ‘Finality’ Under Sentence Enhancement Provision for Out-of-State Convictions Governed by Texas Law

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 ...

Durham, North Carolina, Opts Out of Military-Style Training for Police

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 ...

Seventh Circuit Affirms Suppression of Evidence Because Traffic Stop Unreasonably Prolonged

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 ...

Montana Supreme Court Holds Failure to Instruct Jury on State’s Burden of Proof is Plain Error

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, ...

Eleventh Circuit Holds Florida Drug Trafficking Statute Indivisible and Overbroad for Removal Under Immigration and Nationality Act

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 ...

Utah Supreme Court: Procedural Due Process Violated Where Failure to Participate in Sex Offender Treatment Program Used to Deny Parole to Prisoner Not Convicted of Sex Offense

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 ...

Biased Facial Recognition Systems Are Coming to a Law Enforcement Agency Near You

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 ...

Missouri High Court Holds Checkbox-Style Search Warrant Constitutes an Unconstitutional General Warrant

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. ...

Washington Supreme Court: Nexus Between Property Searched and Probation Violation Required for Warrantless Search of Probationer’s Property

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 ...

$1 Million Paid by NYC to Settle False Arrest Claim

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, ...

Government Eyes Are Watching You: We Are All Prisoners of the Surveillance State

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 ...

Kansas Supreme Court: Judge’s ‘Thwarting’ of Defendant’s Right to Self-Representation was Structural Error Requiring Reversal of Convictions

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. ...

Seattle to Toss Old Pot Convictions

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, ...

New Jersey Supreme Court: Substantive Error to Amend Indictment to Change Degree of Felony on Eve of Trial

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 ...

Missouri Supreme Court Clarifies No Resisting Arrest Charge Once Arrest is Completed

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 ...

Fifth Circuit Grants § 2255 Petition Challenging Failure to Register Conviction for Ineffective Assistance of Counsel

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 ...

FBI Data Reveal ‘War on Cops’ is Nonexistent

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 ...

South Carolina Supreme Court Clarifies When Court Can Deny Right to Self-Representation; Orders New Trial

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 ...

Pennsylvania Supreme Court Vacates Intellectually Disabled Prisoner’s Death Sentence

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 ...

Pennsylvania Supreme Court Announces New Rule to Allow IAC Claims for Fine-Only Sentences

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 ...

Delaware Supreme Court Reverses Criminally Negligent Homicide Because Conduct was ‘Too Remote’ from Cause of Death

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 ...

Ninth Circuit: Younger Abstention Not Appropriate in Habeas Case Challenging Lack of Constitutionally Sufficient Bail Hearing

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 ...

Is FBI Using Classified Tools for Everyday Investigations?

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 ...

Legally Thrown in Jail for Wanting to File a Complaint Against Police

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 ...

District Court Grants Bail in a Drug Case Over Government’s Typical Assertion That ‘No Condition or Combination of Conditions Would Reasonably Assure the Defendant’s Presence at Trial’

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 ...

Powerful District Attorney Lobbies Improperly Influence Law Making

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 ...

NYPD Hands Out Business Cards So Suspects Can Rate Their Encounter with Cops

“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 ...

State Attorney in Vermont Won’t Prosecute Misdemeanor Opioid Treatment Drug Cases

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 ...

News in Brief

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 ...

Ninth Circuit Rules Weekends in Jail Count as Time ‘In Prison’

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 ...

 

 

Prison Phone Justice Campaign
Advertise Here 2nd Ad
Federal Prison Handbook