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The Habeas Citebook Ineffective Counsel

Criminal Legal News: October, 2019

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Volume 2, Number 10

In this issue:

  1. Partial Justice (p 1)
  2. Who Inflicts the Most Gun Violence in America? The U.S. Government and Its Police Forces (p 14)
  3. Tracking Phones: Google as a Dragnet for the Police (p 17)
  4. SCOTUS Declares Portion of Federal Supervised Release Statute Unconstitutional (p 18)
  5. Oregon Supreme Court Announces State Constitution Prohibits Cops From Digging Through Residents’ Trash Without a Warrant (p 19)
  6. Minnesota Supreme Court: Even With a Warrant, Forced Anoscopy Is Unreasonable Search (p 20)
  7. 9th Circuit Finds IAC for Failure to Investigate Mitigating Factors During Penalty Phase of Capital Case (p 20)
  8. Whether State or Federal, Most Convictions Are Overwhelmingly Based on Guilty Pleas (p 21)
  9. Third Circuit Rules Lower Courts Abused Discretion When They Failed to Conduct Evidentiary Hearing on Brady Claim and on Conflict of Interest Claim (p 22)
  10. Fourth Circuit Holds Appeal Waiver Does Not Preclude Retroactive ACCA Claim (p 23)
  11. Eleventh Circuit Holds Time on Appeal Counts When Considering If Sentence Was Imposed Under Residual Clause (p 24)
  12. Pitfalls of Using Risk Assessment Tools (p 25)
  13. The Power of Sheriffs: An Explainer (p 26)
  14. Tenth Circuit: No Absolute Immunity for Prosecutor Who Fabricated Evidence (p 28)
  15. Michigan Supreme Court: Reaching Out Door of Home to Retrieve ID Inadequate to Surrender Fourth Amendment Rights (p 29)
  16. U.S. District Court Holds Residual Clause of Federal Three-Strikes Law Unconstitutional (p 30)
  17. Genetic Testing Raises Privacy Concerns (p 30)
  18. New Hampshire Supreme Court: State’s Armed Career Criminal Statute Applies Only When Qualifying Convictions Arise From at Least 3 Separate Criminal Episodes (p 31)
  19. Seventh Circuit Announces That More Than Psychological Coercion Required to Trigger § 2B3.1(b)(4)(B) Sentencing Enhancement, Disapproving Prior Holdings to the Contrary (p 32)
  20. Fifth Circuit Announces that Categorical Approach Applied to SORNA Doesn’t Permit Circustance-Specific Inquiry Into Offender/Victim Age Differential (p 32)
  21. First Circuit Rules Appeal Waiver Does Not Relieve Counsel of Duty to Consult About an Appeal (p 33)
  22. Delaware Supreme Court: Where Defendant Competent to Plead ‘Guilty but Mentally Ill,’ He May Revoke Plea Before It Is Accepted (p 34)
  23. Maryland Court of Appeals: Sentence Imposed on Remand That Is of Equal Maximum Length as Former Sentence but With Longer Term Before Parole Eligibility Is ‘More Severe’ (p 34)
  24. Black Drivers in Missouri 91 Percent More Likely to Be Stopped Than White Drivers (p 35)
  25. New North Dakota Law Arrests Cops’ Ability to Seize Property (p 35)
  26. Ninth Circuit Announces that District Court Cannot Sua Sponte Raise Waiver as Ground to Dismiss Motion for Sentence Reduction (p 36)
  27. First Circuit: Prosecutor Not Entitled to Absolute Immunity When Performing Purely Administrative Duty (p 36)
  28. MIX13 Reveals Potential Errors in DNA Testing (p 37)
  29. Michigan Will Pay $1.5 Million to Longest Serving Exonerated Prisoner (p 37)
  30. Arrest for Shouting ‘F—k You’ to Arkansas Trooper Violates First and Fourth Amendments Rights, Eighth Circuit Rules (p 38)
  31. Tenth Circuit Vacates Special Condition of Supervised Release That Gave Probation Officers Discretion to Ban Computer and Internet Usage (p 38)
  32. 7th Circuit Announces SORNA Requires Hybrid Approach in Comparing Underlying Conviction to Determine Tier Classification (p 39)
  33. Kentucky Supreme Court Rules Parole Board’s Revocation Procedures Are Unconstitutional (p 40)
  34. Chicago PD Creating Files, Background Checks on Citizens Who Speak at Police Disciplinary Meetings (p 41)
  35. Study: Brazen Cops Posting Racist, Vitriolic Comments on the Internet (p 41)
  36. Killer’s Bold DNA-Based Defense to Get New Mexico Supreme Court Hearing (p 42)
  37. News in Brief (p 42)

Partial Justice

How a Judiciary Poisoned by Politics, Ideology, and Unaccountability Contributes to the Wrongful Conviction of Innocent Men and Women

by Christopher Zoukis, MBA

Alexander Hamilton said in Federalist Paper No. 78 that the judiciary “may truly be said to have neither force nor will but merely judgment.” Because the judiciary lacks the legislative purse and the executive sword, compliance with such judgment is largely voluntary. The Founding Fathers recognized this disability and crafted a judiciary that is grounded in impartiality, integrity, and independence.

A judiciary that is true to these critical principles has the confidence of the people and the respect of the other branches of government. The need for confidence in judicial integrity is, in the words of the U.S. Supreme Court, “genuine and compelling.” Without it, the American system of government under law is placed in serious jeopardy.

The last several decades have seen the judicial principles of impartiality, integrity, and independence eroded from within and attacked from without. Political campaigning for judicial office is rampant across the states, with rivers of cash flowing in from partisan sources. Judges running for election routinely jettison even the facade of impartiality, declaring themselves “tough on crime” and “pro-prosecution.” Ideological and ...

Who Inflicts the Most Gun Violence in America? The U.S. Government and Its Police Forces

by John W. Whitehead, Commentary, The Rutherford Institute

“It is often the case that police shootings, incidents where law enforcement officers pull the trigger on civilians, are left out of the conversation on gun violence. But a police officer shooting a civilian counts as gun violence. Every time an officer uses a gun against an innocent or an unarmed person contributes to the culture of gun violence in this country.” — Journalist Celisa Calacal

Yes, gun violence is a problem in America, violent crime generally remains at an all-time low.

Yes, mass shootings are a problem in America, although while they are getting deadlier, they are not getting more frequent.

Yes, mentally ill individuals embarking on mass shooting sprees are a problem in America.

However, tighter gun control laws and so-called “intelligent” background checks fail to protect the public from the most egregious perpetrator of gun violence in America: the U.S. government.

Consider that five years after police shot and killed an unarmed 18-year-old man in Ferguson, Missouri, there has been no relief from the government’s gun violence.

Here’s what we’ve learned about the government’s gun violence since Ferguson, according to The Washington Post: If ...

Tracking Phones: Google as a Dragnet for the Police

by Bill Barton

The Google Sensorvault database has been used by law enforcement agencies on multiple occasions to obtain what are being called “geofence” warrants, which specify an area and period of time and require Google to provide information regarding the devices that were there.

According to nytimes.com, the warrant “labels [the devices] with anonymous ID numbers, and detectives look at locations and movement patterns to see if any appear relevant to the crime. Once they narrow the field to a few devices they think belong to suspects or witnesses, Google reveals the users’ names and other information.”

Catherine Turner, a Minnesota defense attorney who is handling a case involving the technique, said, “There are privacy concerns that we all have with our phones being tracked—and when those kinds of issues are relevant in a criminal case, that should give everybody serious pause.”

Gary Ernsdorff, a senior prosecutor in Washington state who has been involved with several cases utilizing geofence warrants, said, “It doesn’t pop out the answer like a ticker tape, saying this guy’s guilty. We’re not going to charge anybody just because Google said they were there.”

Nytimes.com said, “Technology companies have for years responded to court orders ...

SCOTUS Declares Portion of Federal Supervised Release Statute Unconstitutional

by Dale Chappell

A sharply divided Supreme Court of the United States narrowly held on June 26, 2019, that the revocation provision of the federal sex offender supervised release statute is unconstitutional because it violates the right to trial by jury under the Fifth and Sixth Amendments – so a sentence imposed under that provision must be vacated. However, a majority of the Court could not agree on whether federal supervised release as a whole should be revamped to require a higher standard of proof to send violators back to prison.

The case came before the Court when the Government petitioned for review of a decision of the U.S. Court of Appeals for the Tenth Circuit, which held that the revocation provision of 18 U.S.C. §3583(k) is unconstitutional and vacated Andre Haymond’s revocation sentence imposed under that provision.

Haymond was on supervised release after completing a 38-month sentence for possession of child pornography in 2010 when he was found with what appeared to be downloaded child pornography on his smartphone. While the judge at the revocation sentencing said he would have imposed “two years or less” for the violation, he was required under § 3583(k) to impose at least five ...

Oregon Supreme Court Announces State Constitution Prohibits Cops From Digging Through Residents’ Trash Without a Warrant

by Mark Wilson

Departing from 50 years of precedent, the Supreme Court of Oregon held that Oregonians retain a constitutionally protected privacy interest in garbage that they leave at the curb for pickup under the state’s constitution. The Court also held that police improperly invade that privacy interest when they search a resident’s garbage without a warrant.

Lebanon, Oregon, Police Detective McCubbins received information about possible drug activity in the home of Tracy Lien and Travis Wilverding. McCubbins decided to secure and search their trash without a warrant.

Republic Services is a private sanitation company under contract with the City of Lebanon to provide garbage collection services to city residents. Neither Lien nor Wilverding had a separate written garbage service agreement with Republic.

McCubbins asked Republic to collect the Lien/Wilverding garbage bin separately from other residences and allow police to search it. Republic’s manager agreed. On the normal garbage pickup day, Republic’s manager drove to the Lien/Wilverding residence in a pickup truck before the larger mechanical sanitation truck arrived to collect their garbage. The manager placed their full trash bin in the back of the pickup and replaced it with an empty plastic trash receptacle. The manager then delivered the ...

Minnesota Supreme Court: Even With a Warrant, Forced Anoscopy Is Unreasonable Search

by Douglas Ankney

The Supreme Court of Minnesota ruled that forcing a suspect to undergo an anoscopy to retrieve a baggie from his rectum was an unreasonable search even though police had obtained a warrant permitting the procedure.

Guntallwon Karloyea Brown was arrested after an informant made a controlled purchase of crack cocaine from Brown. A police officer observed Brown “shoving his hands down his pants and grinding his buttocks against the seat [of a chair],” possibly concealing something.

Brown was strip searched, and police observed a baggie protruding from his anus. Believing the baggie contained crack cocaine, a warrant was obtained directing hospital staff to “use any medical/physical means necessary to have Brown vomit or deficate [sic] the contents of his stomach or physically by any means necessary remove the narcotics from the anal cavity so Officers can retrieve the narcotics.”

Brown was then taken to Hennepin County Medical Center where, after being shown the warrant, Brown refused to remove the baggie.

The police then presented the warrant to Dr. Paul Nystrom. Nystrom informed Brown of four possible options: (1) Brown removes the baggie himself, (2) Brown submits to an enema to cause him to defecate, (3) Nystrom performs ...

9th Circuit Finds IAC for Failure to Investigate Mitigating Factors During Penalty Phase of Capital Case

by Anthony Accurso

The U.S. Court of Appeals for the Ninth Circuit vacated and remanded the defendant’s death sentence for first-degree murder because defense counsel failed to investigate mitigating evidence of cognitive defects that would have resulted in a “reasonable probability that the outcome of sentencing would have been different” had such evidence been presented.

In 1986, Theodore Washington was involved in a brutal home invasion that resulted in the death of Sterleen Hill. He was found guilty, along with two co-defendants, on six counts relating to the robbery and murder.

Washington began appealing his conviction and sentence in 1990, and his case was reviewed by the Ninth Circuit in 2019. While he presented several issues on appeal, all other issues besides counsel’s deficient and prejudicial performance at sentencing were denied.

In preparation for Washington’s sentencing hearing, trial counsel Robert Clarke interviewed Washington and his friends and family. During these interviews, Washington admitted to having a “cocaine problem,” but this alone was insufficient to indicate that Washington was addicted to cocaine or was under the influence at the time of the crime. Also absent from these interviews were any indications that Washington had “diffuse brain damage,” which contributed to his ...

Whether State or Federal, Most Convictions Are Overwhelmingly Based on Guilty Pleas

by Ed Lyon

Readers of Criminal Legal News and Prison Legal News are familiar with the fact that criminal convictions occur mostly as a result of guilty or no-contest pleas.

A recently released report by the Pew Research Center confirms a steady erosion of citizens asserting their right to a jury trial over the past 20 years. “Only 2% of federal criminal defendants go to trial, and most who do are found guilty” is the headline.

In 1998, 4,710 cases went to jury trial. In 2018, this number dropped more than half to 1,879.

In raw percentages, the 1998 number represented 7 percent of the cases actually tried, dropping to 2 percent of the criminal cases actually tried in 2018.

A look at the federal statistics specific to 2018 reveals that a full 90 percent of all criminal convictions occurred through guilty pleas. Of the remaining 10 percent, 80 percent of those cases were ultimately dismissed prior to trial. Of the 20 percent of the remaining cases that were actually tried, a whopping 83 percent resulted in convictions with 17 percent resulting in acquittal.

For the 38 percent of those who chose to forego a jury in favor of having ...

Third Circuit Rules Lower Courts Abused Discretion When They Failed to Conduct Evidentiary Hearing on Brady Claim and on Conflict of Interest Claim

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit ruled that the Superior Court abused its discretion when it failed to conduct an evidentiary hearing on a habeas petitioner’s Brady claim and ruled the Appellate Division abused its discretion when it failed to conduct an evidentiary hearing on a claim that counsel was ineffective due to a conflict of interest.

In September 1993, three men broke into the home of Elroy Connor. When Connor and Daniel Ezekiel interrupted the burglary, Ezekiel was shot and killed. The three men fled. Later James Roach was tried for first-degree murder in connection with Ezekiel’s death. When asked during trial about a co-conspirator named Carl Simon, Roach denied knowing Simon. Roach testified he was at his girlfriend’s house on the night in question and wasn’t involved in the crime. Roach was convicted and appealed, but he later withdrew his appeal in March 1995.

After his conviction, Roach provided a statement to the Government that was completely opposite of his testimony at his trial. Roach now stated that Simon orchestrated the burglary and shot Ezekiel. Simon was arrested shortly after Roach’s conviction. Roach was the Government’s key witness at Simon’s murder trial. ...

Fourth Circuit Holds Appeal Waiver Does Not Preclude Retroactive ACCA Claim

by Anthony Accurso

The U.S. Court of Appeals for the Fourth Circuit held that retroactive ACCA claims are not barred by a defendant’s appeal waiver, and defendant’s 1976 Georgia burglary conviction is no longer a valid ACCA predicate.

Randall Cornette was convicted of being a felon in possession of a firearm, which normally carries a statutory maximum sentence of 10 years under 18 U.S.C. § 924 (a)(2). However, Cornette had four priors and was sentenced to 220 months under the Armed Career Criminal Act (“ACCA”).

After Cornette’s first § 2255 motion failed, he was granted leave by the Fourth Circuit to file a second or successive motion under Johnson v. United States, 135 S. Ct. 2551 (2015). The district court denied his motion, finding his 1976 Georgia burglary met the definition of generic burglary under the ACCA. On appeal, the Fourth Circuit disagreed.

The Government argued that review was improper because the district court at sentencing did not specify whether it was classifying any of Cornette’s priors as ACCA predicates under the elements clause, or the now void “residual clause” of 18 U.S.C. § 924(e)(2)(B). The Court held this ambiguity worked in Cornette’s favor under United States v. Winston ...

Eleventh Circuit Holds Time on Appeal Counts When Considering If Sentence Was Imposed Under Residual Clause

by Dale Chappell

In a case that may have lowered one of the hurdles erected by the U.S. Court of Appeals for the Eleventh Circuit to stop the flow of relief being handed to federal prisoners under Johnson v. United States, 135 S. Ct. 2551(2015) (“Johnson 2015”), the Court held on July 22, 2019, that a change in law decided while a sentence is on direct appeal must be considered in determining whether the residual clause of the Armed Career Criminal Act (“ACCA”) was the basis of the sentence to allow Johnson relief.

Jerome Weeks had been fighting his ACCA sentence since it was imposed in 2010. He challenged it on direct appeal and lost. He challenged it again in a motion to vacate his sentence under 28 U.S.C. § 2255 in 2013 but was denied. When the U.S. Supreme Court declared the residual clause of the ACCA unconstitutional in 2015, Weeks was granted permission by the Eleventh Circuit to file another § 2255 motion in the district court. The Court said it appeared Weeks’ sentence was under the residual clause but left it up to the district court to decide that issue. But that was enough to get him ...

Pitfalls of Using Risk Assessment Tools

by Jayson Hawkins

In the push for criminal justice reform, several ideas have emerged to help fix our broken system.

Many experts have promoted risk assessments as effective tools that could be employed at every level of criminal justice to provide more objective standards. Widespread use of these tools is already making an impact, yet few know exactly what risk assessments are or how they are applied.

Risk assessments are mathematical models that measure the likelihood of a future event based on certain variables. When applied to parole, for example, such a program would weigh the prisoner’s age, prior convictions, and other factors to determine how likely the individual is to re-offend.

The primary target for risk assessments currently is the cash bail system, which incarcerates people who have not been convicted of a crime until their trial if they are unable to pay a bond. Bond was intended by the framers of our Constitution to be an inducement for someone charged with a crime to appear in court, at which time the bond would be refunded. However, contemporary judges routinely set bonds so high that only the very wealthy can pay them. Most people must turn to the services ...

The Power of Sheriffs: An Explainer

 by Jessica Brand, The Appeal

This Explainer was produced by The Appeal, a nonprofit criminal justice news site.

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

 

On September 2018, President Trump stood in front of 44 sheriffs as he began another diatribe against The New York Times and other media outlets that had published stories criticizing his administration. The sheriffs applauded.

The meeting was originally scheduled to be between the sheriffs and officials from ICE and U.S. Customs and Border Protection. Getting a photo opportunity with Trump was an unexpected boon. Sheriff Thomas Hodgson of Bristol County, Massachusetts, a man whose jails have had the highest suicide rate per capita in the state and who publicly offered to let Trump use his ...

Tenth Circuit: No Absolute Immunity for Prosecutor Who Fabricated Evidence

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit affirmed a district court’s decision that a prosecutor does not enjoy absolute immunity from suit for fabricating evidence during a preliminary investigation.

In November 1999, 14-year-old C.A. was reported missing by Floyd Bledsoe. C.A. was the younger sister of Floyd’s wife and had been living with the couple.

Two days later Tom Bledsoe, Floyd’s older brother, confessed to raping and murdering C.A. Tom had a limited social life and had some intellectual limitations. He was 25 years old, lived with his parents, and remained an active participant in his church’s Sunday School program for children. Tom first confessed to his Sunday School teacher, leaving messages on the teacher’s answering machine stating, “I know where [C.A.] is,” “I’m going to turn myself in to the police,” and “I will pay for the rest of my life.” Tom also called his parents, confessed to killing C.A., and told them he was turning himself in to the police. Tom and his attorney met that same day with the Jefferson County Sheriff’s Department where they informed officers that Tom had shot C.A. in the back of the head and buried her in ...

Michigan Supreme Court: Reaching Out Door of Home to Retrieve ID Inadequate to Surrender Fourth Amendment Rights

by David Reutter

The Supreme Court of Michigan held that a defendant did not expose herself to public arrest when she reached out of her doorway to retrieve her identification from a police officer — and there could be no “hot pursuit” when she pulled her arm back into the home.

Jennifer Hammerlund was involved in a single-vehicle accident in the wee hours of September 30, 2015. She called her insurance company and took a rideshare service home. She did not call police. Officer Erich Staman of the Wyoming Police Department reported to the scene, identified the car as Hammerlund’s, had the vehicle towed, and had Kentwood police officers report to Hammerlund’s home to conduct a welfare check.

When they arrived, Hammerlund was in bed, and her roommate answered the door. Hammerlund initially refused to leave her room, but with the officers’ threat to take her into custody and arrest her roommate for harboring a fugitive, Hammerlund came to the door.

Staman arrived to make contact, and it was “pretty clear that she wasn’t coming out of the home.” When he asked for Hammerlund’s ID, she had her roommate pass it to him. He refused to return it that way, ...

U.S. District Court Holds Residual Clause of Federal Three-Strikes Law Unconstitutional

by Dale Chappell

The U.S. District Court for the Southern District of California granted postconviction relief on June 12, 2019, to a federal prisoner serving a mandatory life sentence, holding that the so-called “residual clause” of the federal three-strikes law is unconstitutional.

The case came before the Court in a motion for relief under 28 U.S.C. § 2255 filed by Thomas Morrison.

He’s been fighting his mandatory life sentence under the three-strikes law for the last 23 years. This time it worked.

Morrison was sentenced in 1996 after he pleaded guilty to federal bank robbery. The Government then invoked the mandatory life sentence penalty under 18 U.S.C. § 3559(c)(1)(A)(i) because the bank robbery was a violent felony, plus Morrison had two prior California robbery convictions. The court found that Morrison’s prior convictions qualified, and it had no option except to impose the sentence. Morrison appealed, challenging the use of his priors, but lost.

Eighteen years later, Morrison filed his first § 2255 motion arguing that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), declaring that the Armed Career Criminal Act (“ACCA”) residual clause unconstitutional, equally invalidated the nearly identical residual clause of the ...

Genetic Testing Raises Privacy Concerns

by Bill Barton

DNA testing, once an expensive technology, is now so inexpensive that approximately 26 million people have taken advantage of it,” according to Slate.com. “With sites like Ancestry.com and 23andMe, you can easily submit samples of your DNA and receive information about your family history and personal health.

“Both sites allow individuals to obtain raw DNA data files, which they can then upload to an open-source database like GEDmatch in order to connect them to distant family members. While the files are supposedly anonymous, one study found that an outside individual could identify an ‘anonymous’ set of data using GEDmatch in just one day.”

It is now a tool for law enforcement. For instance, police can create a “user profile” for a crime suspect, upload that suspect’s DNA, and find a match, without requiring a court order of any sort.

A suspect in a scenario such as this one has no idea that his or her DNA has been uploaded to a public website. Joseph DeAngelo, the Golden State Killer suspect in over a dozen murders and 50 rapes in the 1970s and 1980s, was apprehended in part due to this technique. It might appear, in his case, ...

New Hampshire Supreme Court: State’s Armed Career Criminal Statute Applies Only When Qualifying Convictions Arise From at Least 3 Separate Criminal Episodes

by Douglas Ankney

The Supreme Court of New Hampshire held that the state’s armed career criminal statute (codified at RSA 159:3-a) applies only to persons whose qualifying convictions arise from three or more separate criminal episodes.

Jonathan Folds allegedly sold 50 grams of heroin to a “cooperating individual” (“CI”). Based on the CI’s controlled purchases, the police obtained a warrant to search Folds’ residence. During the course of the search, police found a firearm. Folds was charged, inter alia, with violating RSA 159:3-a based on a burglary conviction from 2015 and three drug-offense convictions resulting from a search of his home in 2012. Folds moved to dismiss the charge, arguing that his prior felonies were insufficient as a matter of law to satisfy the statute’s requirements. The trial court granted Folds’ motion, and the State appealed.

The Supreme Court observed that it is the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. State v. Allain, 194 A.3d 950 (N.H. 2018). The Court construes statutes according to the fair import of their terms and to promote justice. In re Justin D., 743 A.2d 829 (N.H. 1999). ...

Seventh Circuit Announces That More Than Psychological Coercion Required to Trigger § 2B3.1(b)(4)(B) Sentencing Enhancement, Disapproving Prior Holdings to the Contrary

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit announced that something more than psychological coercion is required before a sentencing court can apply the two-level enhancement of U.S.S.G. § 2B3.1(b)(4)(B).

Jacob Kirk invited Joshua Herman to Kirk’s house in Hammond, Indiana. Samantha Daniels, Kirk’s mother, was in the house when the men arrived. Herman saw a Jiminez Arms handgun in Daniels’ purse and asked Daniels if he could hold it. After taking it into his hand, Herman pulled out a revolver and said, “Look ... stay seated. I don’t want to blow you guys back, but I will if I have to.” He told Kirk and Daniels not to move and then ran outside. Kirk and Daniels ignored Herman’s order and chased him outside. Herman spun around with a pistol in each hand, yelled, “I told you not to ...” and fired a shot that flew past Daniels’ head.

After pleading guilty, Herman appealed. For reasons not relevant to the instant appeal, the Seventh Circuit remanded. On remand, the district court calculated Herman’s final offense level at 27 with a Guidelines range of 120 to 150 months. Herman objected on the grounds that the court had ...

Fifth Circuit Announces that Categorical Approach Applied to SORNA Doesn’t Permit Circustance-Specific Inquiry Into Offender/Victim Age Differential

by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Fifth Circuit held that the text of the Sexual Offense Registration and Notification Act (“SORNA”) does not permit a court, when applying the categorical approach to determine sex offender tier levels, to conduct a circumstance-specific inquiry into an offender-victim age differential when the differential is an element of a corresponding cross-referenced offense. However, the circumstance-specific inquiry is permitted for the limited purpose of determining the victim’s age.

Johnny Escalante, 35, was convicted in Utah of sexual activity with a 14-year-old girl that did not include rape or aggravated sexual assault. Utah Code Ann. § 76-5-401.

After being released from prison, Escalante moved to Texas where he was arrested for failing to register as a sex offender under 34 U.S.C. § 20913(c). After Escalante pleaded guilty, a presentence report (“PSR”) was prepared that concluded his Utah conviction was comparable to abusive sexual contact of a minor as described in 18 U.S.C. § 2244. And § 2244 in turn cross-references 18 U.S.C § 2243(a), which criminalizes sexual acts with someone who is (1) 12 to 15 years old and (2) is at least four years younger ...

First Circuit Rules Appeal Waiver Does Not Relieve Counsel of Duty to Consult About an Appeal

by Dale Chappell

In a case applying a newly minted U.S. Supreme Court decision, the U.S. Court of Appeals for the First Circuit held that an appeal waiver in a plea agreement did not relieve counsel of his duty to consult with his client about filing an appeal.

When the district judge sentenced Toribio Rojas-Medina to more time in prison than he expected under his plea agreement, and further ordered the sentence to run consecutive to any state sentence that might be imposed, he asked his lawyer “why they had given me so much time” during a two-minute conversation after sentencing. Counsel then filed a “motion to reconsider sentence,” and Rojas-Medina was transferred to his designated prison by way of several county jails and detention centers.

Months later, a docket sheet obtained by Rojas-Medina showed that counsel had not filed an appeal, and he promptly filed a motion under 28 U.S.C. § 2255 claiming ineffective assistance of counsel for failing to file an appeal. At an evidentiary hearing, Rojas-Medina testified that he “wanted to appeal because the sentence was too high.” However, counsel testified that the sentence “could not be appealed” because of the appeal waiver in the plea agreement. ...

Delaware Supreme Court: Where Defendant Competent to Plead ‘Guilty but Mentally Ill,’ He May Revoke Plea Before It Is Accepted

by Anthony Accurso

The Supreme Court of the State of Delaware held that when a defendant has been declared competent to plead guilty he retains the right to revoke his plea of “guilty but mentally ill” before the court accepts it.

Martin Taylor was found with knife wounds on his body after he was named a person of interest in the killing of Whitney White. Taylor was charged with her murder and possession of a deadly weapon. A psychological evaluation revealed that Taylor had a low IQ and suffered from schizoaffective disorder (bipolar type), PTSD with dissociative symptoms of depersonalization, borderline personality disorder, and antisocial personality disorder.

Because Taylor failed to consistently take his medications, he was likely under the influence of his mental illnesses when the crime occurred.

Taylor’s counsel sought a “guilty but mentally ill” plea under 11 Del. Code Ann. tit. 11, § 408(a). Taylor’s counsel said Taylor was competent to knowingly and willingly plead, and the court provisionally accepted his plea pending a hearing on his mental illnesses. Taylor then sought, through letters to counsel and the court, to withdraw his plea and voiced a willingness to seek a self-defense claim at trial. His lawyer refused ...

Maryland Court of Appeals: Sentence Imposed on Remand That Is of Equal Maximum Length as Former Sentence but With Longer Term Before Parole Eligibility Is ‘More Severe’

by Douglas Ankney

The Court of Appeals of Maryland held that where a circuit court imposed on remand a sentence of equal maximum length as the former sentence, but required a longer period of incarceration before parole eligibility than the former sentence, the new sentence was “more severe” for purposes of Maryland Code, Courts & Judicial Proceedings Article (“CJ”), § 12-702(b).

Philip Daniel Thomas was convicted of several crimes in the Circuit Court of Wicomico County. His aggregate sentence of 18 years included 15 years for kidnapping and three years consecutive for second-degree assault.

The Court of Special Appeals vacated the sentence, ruling that the kidnapping and assault convictions should have merged for sentencing purposes. On remand, the circuit court sentenced Thomas to 18 years on the kidnapping alone. Thomas appealed, arguing that his new sentence was more severe than his former sentence because the new sentence required him to serve more time in prison before becoming eligible for parole. The Court of Special Appeals agreed that the new sentence was illegal, vacated it, and remanded for resentencing. The Maryland Court of Appeals granted the State’s petition for a writ of certiorari.

The Court of Appeals observed that when a ...

Black Drivers in Missouri 91 Percent More Likely to Be Stopped Than White Drivers

by Bill Barton

A report by Missouri Attorney General Eric Schmitt reveals that black motorists in that state are 91 percent more likely to be pulled over than whites. The 2018 report illuminating this statistic was released in May.

Scott Decker, an Arizona State University professor of criminology and criminal justice, one of the people who prepared the report, informed CNN that “The disparity is the highest in the 19 years the vehicle stops report has been conducted.”

African Americans comprise 10.9 percent of Missouri’s driving-age population but 19.2 percent of all traffic stops in 2018. The report examined 1,539,477 vehicle stops from 596 law enforcement agencies in the state. “People of other races — including whites, Hispanics, Asians and Native Americans — were stopped at rates ‘well below’ their portion of the driving-age population,” the report said.

“Unfortunately, the numbers have been trending this way consistently year in and year out,” St. Louis NAACP President Adolphus Pruitt said. “The state is not taking it seriously enough to try to fix this issue. Using stops as a policing tool for crime prevention needs to cease. The fact that somebody is driving in a particular area, and a police officer feels ...

New North Dakota Law Arrests Cops’ Ability to Seize Property

by Douglas Ankney

Republican Governor Doug Burgum of North Dakota recently signed House Bill 1286, “which seriously curtails law enforcement agencies’ ability to arrest somebody, take his or her property, and attempt to keep what they seized for themselves even when they cannot prove an underlying crime,” according to reason.com.

Prior to the law, North Dakota was notorious for permitting police to seize and keep citizens’ property without ever convicting anyone of a crime. The rules were so bad that North Dakota was one of the only two states to receive an “F” grade in the “Policing-for-Profit” analysis conducted by the Institute for Justice. (Massachusetts also received an “F.”)

Civil asset forfeiture permits police to seize any cash or property, which they have “probable cause” to believe was used in the furtherance of crime. Police keep the seized property for themselves if they can prove by a “preponderance of evidence” it is related to criminal activity. And of course, in a civil proceeding, there is no right to an attorney, so the property owner must hire an attorney to be represented at the asset forfeiture hearing.

The new law requires police to obtain a criminal conviction before attempting to seize ...

Ninth Circuit Announces that District Court Cannot Sua Sponte Raise Waiver as Ground to Dismiss Motion for Sentence Reduction

by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit announced that a district court cannot sua sponte raise a defendant’s waiver of the right to seek relief under 18 U.S.C. § 3582(c)(2) and deny the defendant’s motion for resentencing on that ground.

In 2012, David James Sainz entered into an agreement that contained an express waiver of his right to seek relief under 18 U.S.C. § 3582(c)(2) in exchange for the reduction of his prison sentence based upon his extensive cooperation with the government. Sainz’s sentence was reduced from 188 months to 120 months.

After Sainz was sentenced, Congress enacted Amendment 782, which lowered Sainz’s Guidelines range. In 2015, Sainz moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), which allows resentencing for “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered.”

The district court denied Sainz’s motion based on the fact that“Sainz expressly waived the right to seek relief under 18 U.S.C. § 3582” even though neither party raised the issue of waiver. Sainz appealed.

The Ninth Circuit observed that no circuit had directly addressed whether a ...

First Circuit: Prosecutor Not Entitled to Absolute Immunity When Performing Purely Administrative Duty

by Anthony Accurso

The U.S. Court of Appeals for the First Circuit held that when a prosecutor performs a purely administrative function in relation to a criminal prosecution, she does not enjoy absolute prosecutorial immunity from suits brought under 42 U.S.C. § 1983.

Rolando Penate was charged with drug-related offenses in November 2011. Key to his prosecution were samples analyzed at the Amherst Drug lab that tested positive for controlled substances. Penate filed to dismiss his charges after learning that Sonja Farak, the chemist who analyzed his samples, was prosecuted for drug use while at work in the lab. His motion was denied because of a lack of evidence as to her drug use on the dates when Penate’s samples were analyzed.

In connection with the prosecution of Farak, Assistant Attorney General Anne Kaczmarek was aware of drug treatment worksheets and a diary created by Farak, which revealed her drug abuse at the lab overlapped the analysis of Penate’s samples.

While these materials were used to prosecute Farak, Kaczmarek decided these records were related to Farak’s mental health treatment and irrelevant to other criminal cases. Further, these records were labeled by Kaczmarek as “assorted lab paperwork.”

Penate filed a motion ...

MIX13 Reveals Potential Errors in DNA Testing

by Jayson Hawkins

A federal study from 2013 showed that manually sorting DNA mixtures is not as foolproof as previously believed. MIX13, which sent the same hypothetical cases to 108 crime labs around the U.S., tested the accuracy of traditional DNA analysis. Each of the five cases grew more complicated until the last, which involved a mixture of four individuals’ DNA collected from a ski mask at a robbery. The labs were presented with the identities of two of the likely suspects, along with a fifth person who was not involved.

Just seven labs managed to fully solve the problem; worse, more than 70 percent implicated the fifth “innocent” suspect in their findings.

John Butler of the National Institute of Standards and Technology said the purpose of MIX13 was to show the limitations of using combined probability of inclusion (“CPI”), not to expose the probability of mistakes. “This was a teaching moment to realize you can falsely include somebody with CPI.”

The few labs that correctly answered MIX13 employed rigorous techniques or advanced technology like TrueAllele, a genotyping software.

Critics charge that errors associated with CPI are more than possibilities—they have already happened. The Virginia Department of Forensic Sciences used ...

Michigan Will Pay $1.5 Million to Longest Serving Exonerated Prisoner

by Bill Barton

Richard Phillips, a Michigan man who was wrongfully incarcerated for 46 years before being exonerated in spring 2018, will receive a settlement of $1.5 million from the state, more than a year after he was released without even as much as a bus ticket. Phillips is the longest serving exoneree in U.S. history.

Phillips, 73, had long maintained that he was innocent of a fatal shooting in the Detroit area in 1971.

“The Innocence Clinic at University of Michigan Law School learned that a co-defendant in 2010 told the parole board that Phillips had absolutely no role,” according to USA Today.

Attorney General Dana Nessel said in a statement targeting other exonerees as well that, “We have an obligation to provide compassionate compensation to these men for the harm they suffered.”

The payment still needs approval by state legislators.

“Someone who is exonerated based on new evidence can qualify for $50,000 for every year spent in prison. Phillips would appear to qualify for more than $2 million.… But he’s being paid only for 30 years because he was serving a separate armed robbery conviction at the same time. Phillips and his legal team said he was ...

Arrest for Shouting ‘F—k You’ to Arkansas Trooper Violates First and Fourth Amendments Rights, Eighth Circuit Rules

by Michael Berk

An Arkansas state trooper violated a motorist’s First and Fourth Amendment rights when he arrested him for yelling “F--k you,” the U.S. Court of Appeals for the Eighth Circuit held in June 2019, affirming the district court’s denial of qualified immunity for the official.

In 2015, trooper Lagarian Cross was conducting a traffic stop on the side of a five-lane highway in Fort Smith, Arkansas. On the other side of the road, Eric Ross Thurairajah was driving past and yelled “F--k You” in the trooper’s direction. Cross abandoned his quarry – the proverbial “bird in the hand” – to chase Thurairajah and arrested him for disorderly conduct.

After several hours in jail, Thurairajah was released, and all charges were dropped.

Thurairajah sued Cross (and associated entities) for deprivation of civil rights under 42 U.S.C. § 1983, and Cross moved for summary judgment on the basis of qualified immunity. The district court, concluding Cross’ arrest of Thurairajah violated the latter’s First Amendment right to be free from retaliation for the exercise of his right to protected speech and his Fourth Amendment right to be free from unreasonable seizure [of his person] both of which were clearly established at ...

Tenth Circuit Vacates Special Condition of Supervised Release That Gave Probation Officers Discretion to Ban Computer and Internet Usage

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit vacated a special condition of supervised release that gave discretion to probation officers to completely ban the defendant’s use of a computer and of the Internet.

Michael Lyle Blair was convicted of possession of child pornography after police discovered a hard drive containing more than 700,000 images of child pornography. Blair pleaded guilty to one count of possession of child pornography, and he was sentenced to 10 years’ imprisonment followed by seven years of supervised release.

One of the many special conditions of release stated: “The defendant’s use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.” Blair appealed, arguing, inter alia, that the special condition was more restrictive than is reasonably necessary, in violation of 18 U.S.C. § 3583(d)(2).

The Tenth Circuit observed “district courts have broad discretion to prescribe conditions on supervised release.” United States v. Hanrahan, 508 F.3d 962 (10th Cir. 2007). But that discretion is limited by 18 U.S.C. §§ 3583(d) and 3553(a), the relevant provisions of which, when read in conjunction with one another, permit the trial court ...

7th Circuit Announces SORNA Requires Hybrid Approach in Comparing Underlying Conviction to Determine Tier Classification

by Anthony Accurso

The U.S. Court of Appeals for the Seventh Circuit joined the Fourth and Tenth Circuits in holding that tier classification under the Sex Offender Registration and Notification Act (“SORNA”) compels a hybrid approach to classifying a defendant’s crime, which underlies a charge of failing to register.

In 1998, Richard Walker pleaded guilty to sexually assaulting his 4- and 6-year-old nephews in violation of Colo. Rev. Stat. § 18-3-405(1). He was sentenced to four years’ probation, which was later revoked, and he served a term in prison. In 2017, he was indicted for failing to register between June 2016 and July 2017. Walker entered a conditional guilty plea preserving his right to appeal the district court’s finding that he was required to register.

The Seventh Circuit first determined how it should compare Walker’s conviction to the requirements of each tier under SORNA. The Court found the language of 34 U.S.C. § 20911 requiring a comparison between Walker’s state offense and the federal “offenses” listed in 18 U.S.C. § 2244 compelled the Court to adopt the categorical approach as outlined in cases such as Descamps v. United States, 570 U.S. 254 (2013). The categorical approach disregards the actual ...

Kentucky Supreme Court Rules Parole Board’s Revocation Procedures Are Unconstitutional

by Douglas Ankney

The Supreme Court of Kentucky held that the Parole Board’s (“Board”) current conditional-freedom final revocation hearing procedures for post-incarceration supervisees violate an offender’s due process rights.

David Wayne Bailey was released from prison and placed on a five-year period of post-incarceration supervision. A condition of that supervision was successful completion of a sex offender treatment program (“SOTP”).

Bailey enrolled in the SOTP, but he was terminated because he was allegedly not making efforts to accept responsibility for his sexual convictions and because he was allegedly disrupting his therapy group. Bailey received notice that due to his failure to complete the SOTP, a preliminary revocation hearing would be held on July 16, 2013. An administrative law judge (“ALJ”) conducted the hearing at which Bailey was represented by counsel and presented witnesses and evidence, including mitigating testimony. He vigorously disputed the reasons given for his SOTP termination, asserting he was actually terminated because of his anti-abortion views that conflicted with those of his therapist.

The ALJ found probable cause to believe Bailey violated the terms of his supervision by being terminated from the SOTP. Bailey was subsequently served with a violation warrant and remained in custody pending a final ...

Chicago PD Creating Files, Background Checks on Citizens Who Speak at Police Disciplinary Meetings

by Dale Chappell

A public records request by the Chicago Tribune found that the Chicago Police Department has been doing background checks and creating files on citizens who speak at weekly meetings of the city’s police disciplinary board. A police spokesman admitted it goes back to at least 2018.

Documents obtained by the Tribune showed that the background checks looked for any open warrants, investigative alerts, and whether the person speaking was a registered sex offender. Police also went online and searched for any posts the person may have made on social media sites.

Mayor Lori Lightfoot said she was “furious and incredulous,” and that she would “make sure that we get to the bottom of this and understand who is responsible.” She said people have a right to express themselves. “That’s what the First Amendment is all about,” she said.

And Karen Sheley, director of the American Civil Liberties Union of Illinois Police Practices Project, agreed. “They’re starting to collect a picture of information about a person by investigating them online and also in criminal databases and keeping a file on it,” she explained. “That’s dossier collecting on people because they’ve engaged in free speech,” she said, noting that ...

Study: Brazen Cops Posting Racist, Vitriolic Comments on the Internet

by Ed Lyon

There is a time-worn, yet usually quite-accurate saying that states: “Where there’s smoke, there’s fire.” Thanks in great part to Philadelphia attorney Emily Baker-White’s efforts as leader of The Plain View Project (“PVP”), a national study of cops’ social media posts, that old adage has taken on new significance regarding today’s defenders of law and order. Telling the public how they really feel is more than enough to cause an average citizen to pause, then think thrice before dialing 911 for help.

For example, Philadelphia cop Robert Oakes has, to put it mildly, an extremely disturbing presence on the internet. How does he feel about domestic abuse? His post dated February 24, 2015, reads: “Oh baby, oh baby, PLEAsE DONT!!!!!stop!!!!!resisting!!!!!” Is he a misogynist? His post dated December 21, 2015, shows a husband, wife, son and two daughters. The husband holds a sign saying, “Peace on earth.” Oakes altered the photo, so it appears the wife and daughters have no mouths. How does he feel about basic arrest procedures and the required rights warnings for suspects?

His post dated in September 2015: “here’s your Maranda [sic] rights ...... . 1. You have the right to shut the ...

Killer’s Bold DNA-Based Defense to Get New Mexico Supreme Court Hearing

by Bill Barton

Anthony Blas Yepez, in October 2012, beat to death the 75-year-old boyfriend of his girlfriend’s mother in a drunken dispute. Charged with first-degree murder, Yepez said he could not remember much of the incident and didn’t know why his reaction was so violent. Public defender Ian Loyd, who was assigned to represent him, said, “He seemed bewildered at what he had done.”

While preparing for trial, Loyd learned about the existence of a variant of MAO-A, a genetic mutation that affects the regulation of aggressive behavior in men, from forensic psychiatrist William Bernet, who spoke at a conference in Washington that Loyd attended.

The mutation was first documented in 1993 in a Dutch family, and some researchers dubbed it “the warrior gene,” according to the NBC News story about Yepez. “Maybe he’s got this gene, too,” Loyd recalled thinking.

Loyd went online and found a commercial genetic testing company, FamilyTreeDNA, that charged $99 to check for the MAO-A deficiency. After an associate visited Yepez in Santa Fe County jail and swabbed his cheek, the DNA sample was sent in. A few weeks later, the results came back positive. “This is the defense I want to pursue,” Loyd ...

News in Brief

Arizona: On the heels of a record 44 cop shootings in 2018, a new policy now requires Phoenix police who draw and point their guns to “self report,” azcentral.com reports. And after they document their actions, “a supervisor will review each incident,” theroot.com reports. “When a gun is pointed at someone, that’s a traumatic event,” Police Chief Jeri Williams told a news conference. “I think this is a first step in being [...] that accountable, transparent organization that is willing to share what we do and how we do it.” The National Police Foundation supports self-reporting “after officer-involved shootings more than doubled in 2018,” the organization said early in the year. The policy “comes two months after a tense community meeting where residents vented about a well-publicized incident, in which video showed an officer pull a gun on a family during a shoplifting investigation outside a Phoenix dollar store in May,” CNN reports. In addition to self-reporting, over 1,700 cops have received body cameras and “all patrol officers will undergo an eight-hour training program to teach them how to better assist individuals in the midst of a mental health crisis.”

California: A report by a rookie Los Angeles Sheriff’s ...




 

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