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Criminal Legal News: October, 2019

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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” ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...




 

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