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Prisoner Education Guide

Criminal Legal News: January, 2019

Issue PDF
Volume 2, Number 1

In this issue:

  1. The Fallibility of Forensic Science: Crime-Solving Tool Can Lead to Wrongful Convictions—and Belated Exonerations (p 1)
  2. New York City Cops Using Supposedly Sealed Arrest Records (p 9)
  3. Ninth Circuit Grants Habeas for IAC of Resentencing Counsel Who Failed to Challenge Sole Aggravating Factor or Investigate Mitigating Circumstances (p 11)
  4. Nevada Court of Appeals Rules Police May Not Conduct Warrantless Search Based on Third-Party Consent Where No Effort Made to Determine Whether Person Has Authority to Do So (p 12)
  5. Kansas Supreme Court Holds Travel Plan Questions Unconstitutionally Extended Traffic Stop (p 13)
  6. Seventh Circuit: Procedural Error Occurs When Miscount of Prior Convictions Basis for Sentence, Resentencing Required (p 14)
  7. Tenth Circuit Rules Police Seizure of Home Where No Evidence of Criminal Activity Apparent Violates Fourth Amendment Requiring Suppression of Incriminating Evidence (p 14)
  8. Massachusetts Supreme Court Tosses Thousands of Drug Cases After Lab Tech Scandal and Government Cover-Up (p 16)
  9. Police Misconduct Threatens Over 20,000 New Jersey Drunk Driving Convictions (p 16)
  10. Harris County, Texas Prosecutors Review DWI Cases Impacted by Discredited Expert (p 17)
  11. District Court Holds that Some White-Collar Felons May Lawfully Possess Firearms Due to a Little Known Exemption For Crimes ‘Relating to the Regulation of Business Practices’ (p 18)
  12. Massachusetts Supreme Court Overturns Conviction Based on Prosecutor’s False Statement During Closing Argument (p 19)
  13. Seventh Circuit: Bureau of Prisons Improperly Prolonged Prisoner’s Sentence (p 20)
  14. Oregon Supreme Court: ‘Grooming’ Evidence Requires Scientific Validity Foundation (p 20)
  15. Illinois: Chicago Police Misconduct Outed in Database 2.0 Version (p 21)
  16. I once wrote mandatory minimum laws. After ties to Abramoff landed me in prison, I know they must end. (p 22)
  17. Seventh Circuit Vacates Conditions of Supervised Release Following Child Pornography Conviction (p 22)
  18. Georgia Can No Longer Charge for Access to Its Statutes, Thanks to Eleventh Circuit Ruling (p 23)
  19. Article Calls for Courts to Implement ‘Brady Violation Disclosure Letter’ System (p 24)
  20. California’s New Cashless Bail System More Likely to Increase Number of Detainees (p 25)
  21. Ninth Circuit Rules California Robbery Not a ‘Crime of Violence’ in Light of Dimaya and Allows Withdrawal of Guilty Plea (p 26)
  22. Ninth Circuit Holds Undisclosed Relationship Between Murdered FBI Agent and Presiding Judge in Capital Case Created Intolerable Risk of Judicial Bias, Warranting Habeas Relief (p 26)
  23. Connecticut Supreme Court Finds IAC for Failure to Investigate Key Alibi Witness, Grants New Trial (p 27)
  24. Civil Rights Groups Urge Ending Use of Pretrial Bail Risk Assessment Tools (p 28)
  25. $1 Million Settlement by Cleveland to Six Rape, Murder Victims’ Families (p 29)
  26. Minnesota Supreme Court Joins the Chorus by Announcing Birchfield is Retroactive (p 30)
  27. South Carolina Supreme Court Rules Mandatory Electronic Monitoring of Sex Offenders Must Be ‘Reasonableness’ Under Fourth Amendment (p 30)
  28. Report: NYPD Assisted in Creating Facial Recognition Technology (p 31)
  29. Massachusetts Supreme Court Shifts Burden on Government to Prove by Clear and Convincing Evidence Sex Offender Poses Continued Risk at Termination of Registry Hearings (p 32)
  30. Kansas Supreme Court Rules Fourth Amendment Violation Where Purported Inventory Search Was Performed in Absence of Standard Policy (p 32)
  31. Colorado Leads U.S. in Suppression of Court Cases (p 33)
  32. Fourth Circuit: Federal Conspiracy to Commit Murder in Aid of Racketeering Not a Crime of Violence for Purposes of Sentencing Guidelines Enhancement (p 34)
  33. Eleventh Circuit Denies Qualified Immunity to Florida Cop Who Seized iPhone from Accident Bystander (p 34)
  34. Crime Labs Falling Short (p 35)
  35. New Hampshire’s Secret List of Problematic Cops Gets Worse (p 35)
  36. How Defense Lawyers Break Attorney-Client Privilege to Defend Ineffective Assistance of Counsel Claims (p 36)
  37. U.S. Government Paid Out Over $60 Million to Settle Border Patrol Violence Claims (p 37)
  38. Very Few Have Taken Advantage of New York’s Program to Seal Criminal Records (p 38)
  39. California Court of Appeal: Youth Offender Parole Statute Trumps Consecutive Prison Term Statute (p 38)
  40. Homeland Security One Step Closer to Becoming Big Brother Incarnate (p 39)
  41. Fee to Plead Guilty Burdens Indigent Defendants in Pennsylvania (p 39)
  42. Junk Sciences and Scientists Strike Again in Texas (p 40)
  43. St. Louis Police Department Fighting Prosecution Exclusion List (p 40)
  44. Global Voice Recognition Database Alarms Privacy Groups (p 41)
  45. Philadelphia Pays Out Millions to Settle Police Shootings (p 41)
  46. Scottish Psychologist’s Study Focuses On Why the Innocent May Confess to Crimes (p 42)
  47. News in Brief (p 42)

The Fallibility of Forensic Science: Crime-Solving Tool Can Lead to Wrongful Convictions—and Belated Exonerations

by Rick Anderson

It’s the ultimate crime-solving tool, enabling prosecutors to bring seemingly rock-solid charges against accused murderers and rapists while also using it to re-open and solve dust-collecting cold cases. Victims and their families consider it a godsend and television watchers marvel at its consistency in bringing happy endings ...

New York City Cops Using Supposedly Sealed Arrest Records

by Ed Lyon

Since 1976, arrests in New York that do not result in convictions are supposed to be sealed. Sealed meaning inaccessible through any background checks or public records, anywhere. This is meant to ensure that citizens acquitted of a charged offense will not endure any future hardship simply ...

Ninth Circuit Grants Habeas for IAC of Resentencing Counsel Who Failed to Challenge Sole Aggravating Factor or Investigate Mitigating Circumstances

by Matt Clarke

The U.S. Court of Appeals for the Ninth Circuit ordered the granting of habeas relief to an Arizona death row prisoner based on ineffective assistance of counsel (“IAC”) at resentencing.

Michael Ray White was manipulated by a woman he was having an affair with into shooting ...

Nevada Court of Appeals Rules Police May Not Conduct Warrantless Search Based on Third-Party Consent Where No Effort Made to Determine Whether Person Has Authority to Do So

by Richard Resch

The Nevada Court of Appeals ruled that law enforcement officers cannot conduct a warrantless search of a bedroom inside a shared residence by obtaining the consent of a third party without first asking about the living arrangements within the residence. The specific question at issue had not ...

Kansas Supreme Court Holds Travel Plan Questions Unconstitutionally Extended Traffic Stop

by Matt Clarke

The Supreme Court of Kansas held that a police officer unconstitutionally extended the traffic stop he had made for following too closely when he asked questions about the driver’s travel plans for four-and-a-half minutes before requesting warrant information and criminal history checks. This required the suppression of ...

Seventh Circuit: Procedural Error Occurs When Miscount of Prior Convictions Basis for Sentence, Resentencing Required

by David Reutter

The U.S. Court of Appeals for the Seventh Circuit held that an Indiana federal district court committed a procedural error in selecting a sentence based on a miscounting of the defendant’s prior felony conviction.

Before the Court was the appeal of Tyrone Miller. He was arrested ...

Tenth Circuit Rules Police Seizure of Home Where No Evidence of Criminal Activity Apparent Violates Fourth Amendment Requiring Suppression of Incriminating Evidence

by Richard Resch

The U.S. Court of Appeals for the Tenth Circuit ruled that police violated the Fourth Amendment by unreasonably seizing the home of a man whose wife died of an apparent overdose on prescription medication where police had no reason to suspect that the home contained evidence ...

Massachusetts Supreme Court Tosses Thousands of Drug Cases After Lab Tech Scandal and Government Cover-Up

by Dale Chappell

The Supreme Judicial Court of Massachusetts reached a decision in the Amherst lab scandal, where disgraced lab technician Sonja Farak tampered with and stole drugs from thousands of drug samples to be tested in criminal cases, by vacating and dismissing thousands of drug cases that were tied ...

Police Misconduct Threatens Over 20,000 New Jersey Drunk Driving Convictions

by Derek Gilna

The New Jersey Supreme Court has issued a report and order that could result in the invalidation of at least 20,667 drunk driving convictions in the state, after a state police officer was charged with criminal misconduct that cast serious doubt on the accuracy of blood-alcohol ...

Harris County, Texas Prosecutors Review DWI Cases Impacted by Discredited Expert

by Derek Gilna

The testimony of county scientist Fessessework Guale, who was employed by the Harris County medical examiner’s office for 10 years, has been called into question by the very criminal justice offices who relied on that testimony to obtain convictions in criminal DWI prosecutions.

The Texas Forensic Science ...

District Court Holds that Some White-Collar Felons May Lawfully Possess Firearms Due to a Little Known Exemption For Crimes ‘Relating to the Regulation of Business Practices’

In Reyes, District Judge John Bates of the D.D.C. appears to have become the first Federal jurist to hold that some white-collar felons can lawfully possess firearms, notwithstanding the fact that they have been convicted of a crime “punishable by imprisonment for a term exceeding one year.” ...

Massachusetts Supreme Court Overturns Conviction Based on Prosecutor’s False Statement During Closing Argument

by Dale Chappell

A prosecutor’s false statements in her closing argument in an attempt to corroborate a witness’ testimony was fatal to her case, the Supreme Judicial Court of Massachusetts held, vacating the convictions for rape of a child and indecent assault and battery upon a child.

Angel Alvarez was ...

Seventh Circuit: Bureau of Prisons Improperly Prolonged Prisoner’s Sentence

by Christopher Zoukis

The United States Court of Appeals for the Seventh Circuit took the federal Bureau of Prisons to task for using its statutory authority to improperly prolong a prisoner’s sentence. The opinion vacated a district court opinion denying the prisoner habeas corpus relief and remanded for further proceedings ...

Oregon Supreme Court: ‘Grooming’ Evidence Requires Scientific Validity Foundation

by Mark Wilson

The Supreme Court of Oregon held that expert testimony about “grooming” children for subsequent sexual abuse is “scientific” evidence that may not be admitted without a foundational showing of scientific validity under Or. Evid. Code 702.

Robert Lewis Henley’s 11-year-old stepdaughter, identified as M, accused him of ...

Illinois: Chicago Police Misconduct Outed in Database 2.0 Version

by Ed Lyon

On August 16, 2018, a new era of transparency in Chicago police misconduct dawned. An updated version of a public database called the Citizens Police Data Project 2.0 (“CPDP”) makes available disciplinary records of Chicago police officers.

Similar to the nationwide Henry A. Wallace Police Crime ...

I once wrote mandatory minimum laws. After ties to Abramoff landed me in prison, I know they must end.

10 million children will lose a parent to incarceration. Judges must consider individual cases, not be forced to unnecessarily separate families

by Kevin Ring, Opinion contributor, USA TODAY, published October 16, 2018

Three months into my federal prison sentence, my cellmate Santos saw that I was struggling. I couldn’t stop ...

Seventh Circuit Vacates Conditions of Supervised Release Following Child Pornography Conviction

by Matt Clarke

The U.S. Court of Appeals for the Seventh Circuit vacated three of the four conditions of supervised release (“CSR”) challenged by a man who had been convicted of possessing child pornography.

Joseph Canfield pleaded guilty to possessing digital images of child pornography in Illinois federal court ...

Georgia Can No Longer Charge for Access to Its Statutes, Thanks to Eleventh Circuit Ruling

For decades, the citizens of Georgia were not able to see the laws governing them without paying a fee.

However, the U.S. Court of Appeals for the Eleventh Circuit ruled on October 19, 2018, that the state can no longer do this.

“For decades, Georgia ignored this reality. Rather ...

Article Calls for Courts to Implement ‘Brady Violation Disclosure Letter’ System

by Steve Horn

A draft copy of an academic article set to be published in 2019 in the Vanderbilt Law Review calls for a novel approach to chipping away at the nagging issue of Brady violations that occur during criminal cases.

That paper, titled “Disclosing Prosecutorial Misconduct” by University of ...

California’s New Cashless Bail System More Likely to Increase Number of Detainees

by Kevin Bliss

California became the first state to completely do away with cash bail, making international headlines. The new system uses algorithms to weigh factors to determine a person’s risk assessment with preventive detention for more serious crimes. Critics are concerned that the algorithms are based on data from ...

Ninth Circuit Rules California Robbery Not a ‘Crime of Violence’ in Light of Dimaya and Allows Withdrawal of Guilty Plea

by David Reutter

The U.S. Court of Appeals for the Ninth Circuit held a defendant was entitled to withdraw his guilty plea to a charge of illegally reentering the United States in light of the decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), together with its own ...

Ninth Circuit Holds Undisclosed Relationship Between Murdered FBI Agent and Presiding Judge in Capital Case Created Intolerable Risk of Judicial Bias, Warranting Habeas Relief

by David Reutter

The U.S. Court of Appeals for the Ninth Circuit held that an undisclosed connection between an FBI agent and a judge entitled a death row prisoner to the grant of habeas corpus relief. The Court found there was a constitutionally intolerable risk of judicial bias.

Jose ...

Connecticut Supreme Court Finds IAC for Failure to Investigate Key Alibi Witness, Grants New Trial

by Dale Chappell

In a case where the defendant’s alibi was his only defense, the Supreme Court of Connecticut held that counsel’s failure to investigate a key witness who could have supported the defense and changed the outcome of the case constituted ineffective assistance of counsel (“IAC”) and affirmed the ...

Civil Rights Groups Urge Ending Use of Pretrial Bail Risk Assessment Tools

by Steve Horn

More than 100 civil rights organizations have signed a statement to denounce the use of pretrial bail risk assessment algorithm tools meant to determine conditions of bail and, in many cases, jail.

The 10-page document titled, “The Use of Pretrial ‘Risk Assessment’ Instruments: A Shared Statement of ...

$1 Million Settlement by Cleveland to Six Rape, Murder Victims’ Families

by Kevin Bliss

The families of six of 11 victims raped and killed by convicted sex offender Anthony Sowell due to a botched 2008 rape accusation reached a settlement with the city of Cleveland. The loved ones of Nancy Cobbs, Telesia Fortson, Amelda Hunter, Le’Shanda Long, Diane Turner, and Janice ...

Minnesota Supreme Court Joins the Chorus by Announcing Birchfield is Retroactive

by Christopher Zoukis

The Supreme Court of Minnesota ruled that Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), in which the U.S. Supreme Court held that a state cannot use criminal sanctions to compel a DWI blood test absent a search warrant, applies retroactively to final convictions on ...

South Carolina Supreme Court Rules Mandatory Electronic Monitoring of Sex Offenders Must Be ‘Reasonableness’ Under Fourth Amendment

by Dale Chappell

The Supreme Court of South Carolina held that a state law requiring mandatory electronic monitoring of sex offenders must meet the “reasonableness” standard under the U.S. and South Carolina Constitutions, which requires an examination of the totality of the circumstances before such a condition may be ...

Report: NYPD Assisted in Creating Facial Recognition Technology

by Kevin Bliss

IBM and the New York Police Department (“NYPD”) collaborated on the development of the computer giant’s facial recognition technology, The Intercept has revealed. The program began in 2008 when IBM used the threat of possible terrorist activity post-9/11 to sell the program to the NYPD, and ...

Massachusetts Supreme Court Shifts Burden on Government to Prove by Clear and Convincing Evidence Sex Offender Poses Continued Risk at Termination of Registry Hearings

by Dale Chappell

The Supreme Judicial Court of Massachusetts held that when a sex offender required to register requests to be reclassified at a lower risk level, or to terminate his obligation to register, the burden is on the Sex Offender Registry Board (“SORB”)—and not the offender—to prove he ...

Kansas Supreme Court Rules Fourth Amendment Violation Where Purported Inventory Search Was Performed in Absence of Standard Policy

by Richard Resch

The Supreme Court of Kansas held the warrantless search of defendant’s purse and wallet following a traffic accident violated her Fourth Amendment rights because the search wasn’t performed in accordance with an established departmental policy governing inventory searches and thus that exception to the warrant requirement is ...

Colorado Leads U.S. in Suppression of Court Cases

by Kevin Bliss

The Denver Post reported that it had found a cache of suppressed court cases in Colorado. More than 6,700 cases, mostly criminal (including some involving violent felonies), had been restricted from public access since 2013.

Many courthouse employees and law enforcement officials would not even acknowledge ...

Fourth Circuit: Federal Conspiracy to Commit Murder in Aid of Racketeering Not a Crime of Violence for Purposes of Sentencing Guidelines Enhancement

by Christopher Zoukis

The United States Court of Appeals for the Fourth Circuit ruled that conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5), does not qualify as a crime of violence for purposes of a United States Sentencing Guidelines ...

Eleventh Circuit Denies Qualified Immunity to Florida Cop Who Seized iPhone from Accident Bystander

by Christopher Zoukis

The U.S. Court of Appeals for the Eleventh Circuit ruled against a Martin County, Florida, deputy sheriff who seized an iPhone used by a bystander to take pictures and video of an accident scene. The opinion denied the deputy qualified immunity from suit over the illegal ...

Crime Labs Falling Short

by Ed Lyon

Whenever most people hear about DNA testing in criminal cases, they invariably envision well-equipped, sterile labs like the ones depicted in television dramas such as CSI: Crime Scene Investigation or Bones. However, a study by the National Institute of Standards and Technology (“NIST”) that was finished in ...

New Hampshire’s Secret List of Problematic Cops Gets Worse

by Dale Chappell

New Hampshire’s secret list of corrupt and problem cops just got worse. On April 30, Governor Chris Sununu and Attorney General Gordon MacDonald announced that individual cops won’t be placed on the list prior to an investigation into potential credibility problems is completed.

Meanwhile, officers are expected ...

How Defense Lawyers Break Attorney-Client Privilege to Defend Ineffective Assistance of Counsel Claims

by Steve Horn

A cardinal rule of defense lawyering – or any lawyering, for that matter – is to zealously advocate on behalf of your client. Yet in many states, incentive systems exist for criminal defense attorneys to do the opposite and collaborate directly with prosecutors.

These dynamics are spelled ...

U.S. Government Paid Out Over $60 Million to Settle Border Patrol Violence Claims

by Christopher Zoukis

A report from The Guardian reveals that the United States government paid out more than $60 million over a 12-year period to settle claims of violence by Customs and Border Patrol (“CBP”) agents.

Adding in settlements related to employment and property claims raises the total to more ...

Very Few Have Taken Advantage of New York’s Program to Seal Criminal Records

by Ed Lyon

Some of the lines to one of late country music singer Merle Haggard’s famous hit songs were about a “branded man, out in the cold.” He was lamenting that no one would hire him because he had done time in prison.

This is all too familiar ...

California Court of Appeal: Youth Offender Parole Statute Trumps Consecutive Prison Term Statute

by Christopher Zoukis

The Court of Appeal of California, Second Appellate District, ruled that a statute granting prisoners who were convicted as youth offenders improved parole eligibility possibilities supersedes a different statute that requires prisoners convicted and sentenced for in-prison crimes to serve their new sentence consecutively. The June 6 ...

Homeland Security One Step Closer to Becoming Big Brother Incarnate

by Christopher Zoukis

The United States Department of Homeland Security (“DHS”) has taken a giant leap toward achieving its apparent goal of knowing everything about everyone: the development and launch of the Homeland Advanced Recognition Technology (“HART”) database. The database allows DHS to organize and correlate multiple biometric identifiers, including ...

Fee to Plead Guilty Burdens Indigent Defendants in Pennsylvania

by Dale Chappell

A woman in Cumberland County, Pennsylvania, pleaded guilty to stealing $25 in merchandise in 2016. It cost her almost $600 to plead guilty. A man in Fairview Township, Pennsylvania, pleaded guilty to possession of a small amount of marijuana in 2017. It cost him $1,000 in ...

Junk Sciences and Scientists Strike Again in Texas

by Ed Lyon

It is an unfortunate byproduct in the age of mass incarceration in the United States that there are a great many wrongful convictions. Despite its negative reputation in the criminal justice area, Texas has been slowly reversing this disturbing trend. Dallas County was among the very first ...

St. Louis Police Department Fighting Prosecution Exclusion List

by Kevin Bliss

St. Louis Circuit Attorney Kim Gardner has a list of 28 of the city’s police department officers whose cases her office will no longer accept, citing credibility issues. Already Gardner’s office has refused the prosecution of several cases, effectively preventing 2.5 percent of the police department’s ...

Global Voice Recognition Database Alarms Privacy Groups

by Kevin Bliss

Human rights watchdog organizations are alarmed over the new Speaker Identification Integrated Project (“SiiP”), a voice biometric database utilized by Interpol, the International Criminal Police Organization, for law enforcement purposes.

Created by Verint, a multinational biometrics company, SiiP is the result of a four-year project that marks ...

Philadelphia Pays Out Millions to Settle Police Shootings

by Ed Lyon

Philadelphia, Pennsylvania. Supposedly the “city of brotherly love.” The sentiment expressed in the moniker is apparently not shared, observed, or even practiced by some members of the city’s police department.

During an August 2012 traffic stop, police officer Cyrus Mann shot 28-year-old Hassan Pratt to death ...

Scottish Psychologist’s Study Focuses On Why the Innocent May Confess to Crimes

by Derek Gilna

Dr. Faye Skelton of Napier University in Edinburgh, Scotland, has published a report detailing the tendency of some individuals to confess to crimes they did not commit. She noted that research from the United States shows that, “over 25% of people later exonerated by DNA evidence made ...

News in Brief

Arkansas: Police officer Josh Hastings shot and killed 15-year-old burglary suspect Bobby Moore III in August 2012 while investigating car break-ins at an apartment complex. Although the now-former officer was criminally charged, two trials closed with hung juries. After that, a wrongful death lawsuit in which Moore’s family was awarded ...




 

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