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Prisoner Education Guide

Criminal Legal News: November, 2019

Issue PDF
Volume 2, Number 11

In this issue:

  1. Prosecutors Working to Clear Wrongful Convictions With Mixed Results (p 7)
  2. The Mass Incarceration Epidemic Viewed Through a Young Daughter’s Eyes (p 8)
  3. Qualified Immunity: Explained (p 10)
  4. Businesses Are Focusing More and More on Aiding Offenders Reentering Society (p 13)
  5. Pennsylvania Supreme Court: Probationer Must Violate Specific Condition of Probation or Commit New Crime to Be Found in Violation (p 14)
  6. Seventh Circuit Reverses Convictions Under 18 U.S.C. § 924(c); Holds Underlying Offenses Do Not Qualify as ‘Crimes of Violence’ (p 14)
  7. Fifth Circuit: Practices of Orleans Parish Judges in Collecting Fines and Fees Violates Due Process (p 16)
  8. Tens of Thousands of Sentencing Decisions Are Hidden Within PACER, Hindering Access by Lawyers and Defendants (p 16)
  9. Fourth Circuit Reviews for Plain Error and Vacates Brandishing a Firearm Conviction Obtained Under 18 U.S.C. § 924(C)(3) (p 17)
  10. New Jersey Supreme Court Announces New Test to Determine When State May Obtain Second DNA Sample After Unlawfully Obtained First Sample (p 18)
  11. Tennessee Supreme Court Abandons Doctrine of Abatement Ab Initio (p 19)
  12. Fourth Circuit Grants Habeas Relief to Pre-Trial State Prisoner on Double Jeopardy Grounds (p 20)
  13. New Hampshire Ends Death Penalty (p 21)
  14. California Court of Appeal Explains Procedures to Determine Appropriate Relief When Conviction Is Vacated Based on People v. Chiu and Senate Bill 1437 (p 22)
  15. Connecticut Supreme Court Rules 5 Days Past Due on Rent While Incarcerated Does Not Deprive Defendant of Expectation of Privacy in Home (p 22)
  16. Fifth Circuit: First Step Act Doesn’t Permit Plenary Resentencing in Retroactive Application of the Fair Sentencing Act (p 23)
  17. Groundbreaking Connecticut Law Tracks Information on Jailhouse Snitches (p 24)
  18. Oregon Supreme Court Reaffirms ‘Independent Evidence Rule’ for Accomplice Testimony (p 24)
  19. 9th Circuit Says Inadvertently Placing Closed Folding Knife on Teller Counter Not Armed Bank Robbery (p 26)
  20. Fifth Circuit Reiterates Diligence Under AEDPA Requires Consideration of Actions Both Before and After Filing of Habeas Petition (p 26)
  21. Safe Interactions Between Police and Citizens (p 27)
  22. Fifth Circuit Vacates § 924 Convictions Based on Davis (p 28)
  23. Ninth Circuit Rules IAC for Failure to Investigate Mitigating Evidence During Penalty Phase of Capital Trial (p 28)
  24. Is Data Mining an Invasion of Privacy? (p 29)
  25. 10th Circuit: District Court Must Ensure When Defendant Waives Right to Counsel He Understands He’s Required to Adhere to Federal Procedural and Evidentiary Rules (p 30)
  26. Ninth Circuit: Drug Quantity in PSR Adopted by Sentencing Court not Binding in § 3582(c)(2) Sentence Reduction Proceedings (p 31)
  27. U.S. District Court Grants Savings Clause Petition, Vacates Mandatory Life Sentence (p 32)
  28. Tenth Circuit: District Court Abused Discretion in Denying § 2255 Petition Without Hearing Where Record Didn’t Conclusively Show Defendant Not Entitled to Relief (p 32)
  29. Hundreds of Missouri Prisoners May Be Released Under New Sentencing Reform Law (p 33)
  30. Ex-Felons’ Rights Expanding to Include Jury Duty (p 34)
  31. Connecticut Supreme Court: When Expert’s Testimony Asserts Truth of DNA Profile Prepared by a Different Non-Testifying Expert, Confrontation Clause Is Violated (p 34)
  32. California Court of Appeal Announces Defendant Convicted of Felony Accessory Is Eligible for Resentencing Under Proposition 64 (p 35)
  33. Alabama OKs Chemical Castration for Some Sex Offenders (p 36)
  34. Third Circuit Announces New Rule for Amending § 2255 Motions on Appeal (p 36)
  35. Big Brother, Big Business, Big Law Enforcement (p 37)
  36. Faulty Science Still Admissible Evidence in Many States (p 38)
  37. Ninth Circuit Clarifies When Warrantless Searches of Cellphones at Border Are Reasonable (p 38)
  38. Costly Electronic Monitoring Programs Replacing Ineffective Jail Bond Systems (p 39)
  39. Defendant’s Flight From Police’s Illegal Frisk Doesn’t Render Improperly Obtained Evidence Admissible in Maryland (p 40)
  40. Kansas Supreme Court: Expired License Plate Doesn’t Attenuate Evidence from Illegal Seizure (p 40)
  41. ‘Changes Are a Comin’ (p 41)
  42. Forensic Science: Reliable and Valid? (p 42)

Prosecutors Working to Clear Wrongful Convictions With Mixed Results

by Bill Barton

Before the murder charge against him was finally dropped, Richard Phillips had the decidedly dubious distinction of being locked up longer than any other eventually exonerated prisoner—he was incarcerated for 45 years, convicted of a crime he did not commit. 

According to a report from the ...

The Mass Incarceration Epidemic Viewed Through a Young Daughter’s Eyes

by Hayley Schulman

When I was 16, my dad was sentenced to eight years in prison for non-violent offenses. What the judge didn’t realize was that he was sentencing me to a virtual prison. 

It was a story of an accountant desperate for money. In a position with access ...

Qualified Immunity: Explained

by Amir H. Ali and Emily Clark, The Appeal, a nonprofit criminal justice news site

In [The Appeal] 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 ...

Businesses Are Focusing More and More on Aiding Offenders Reentering Society

by Kevin Bliss

Former Brick, New Jersey, attorney John Koufos lost his job as a high-profile prosecutor when he seriously injured someone in a car accident while driving drunk. He was sentenced to six years in jail.

After an early release, Koufos earned his way to executive director of the ...

Pennsylvania Supreme Court: Probationer Must Violate Specific Condition of Probation or Commit New Crime to Be Found in Violation

by Douglas Ankney

The Supreme Court of Pennsylvania held that a court must find, based on a preponderance of the evidence, that a probationer violated a specific condition of probation or committed a new crime to be found in violation of probation.

In July 2015, Darnell Foster was sentenced to ...

Seventh Circuit Reverses Convictions Under 18 U.S.C. § 924(c); Holds Underlying Offenses Do Not Qualify as ‘Crimes of Violence’

by Matt Clarke 

The U.S. Court of Appeals for the Seventh Circuit reversed the convictions of two federal prisoners who had been found guilty of using and discharging firearms during a crime of violence in violation of 18 U.S.C. § 924(c). In doing so, the Court held that the ...

Fifth Circuit: Practices of Orleans Parish Judges in Collecting Fines and Fees Violates Due Process

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit affirmed the decision of a district court that granted summary judgment to the plaintiffs in a § 1983 suit alleging that the practices of the judges (“Judges”) of the Orleans Parish Criminal District Court (“OPCDC”) violated the Due ...

Tens of Thousands of Sentencing Decisions Are Hidden Within PACER, Hindering Access by Lawyers and Defendants

by Dale Chappell

Thanks to technology, judges’ decisions in the thousands of sentences they impose each year get isolated in an unsearchable database called PACER — Public Access to Court Electronic Records. While the public may be able to access a judge’s sentencing decision on PACER, they can only do ...

Fourth Circuit Reviews for Plain Error and Vacates Brandishing a Firearm Conviction Obtained Under 18 U.S.C. § 924(C)(3)

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit reviewed for plain error and vacated Donald Eugene Walker’s conviction for brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Walker pleaded guilty to kidnapping in violation of ...

New Jersey Supreme Court Announces New Test to Determine When State May Obtain Second DNA Sample After Unlawfully Obtained First Sample

by Douglas Ankney

The Supreme Court of New Jersey rejected the “inevitable discovery doctrine” as being “a poor fit” for determining whether a second DNA sample could be obtained after a trial court determined that the first sample was unlawfully obtained. Instead, the Court announced a new test that is ...

Tennessee Supreme Court Abandons Doctrine of Abatement Ab Initio

by David Reutter

The Tennessee Supreme Court held “the doctrine of abatement ab initio must be abandoned because it is obsolete, its continued application would do more harm than good, and it is inconsistent with the current public policy of this State.”

Before the court was an appeal brought by ...

Fourth Circuit Grants Habeas Relief to Pre-Trial State Prisoner on Double Jeopardy Grounds

by Dale Chappell

Finding that a South Carolina state court violated a state pre-trial defendant’s right against double jeopardy by granting a mistrial when the State wasn’t prepared for trial, the U.S. Court of Appeals for the Fourth Circuit granted federal habeas relief on June 21, 2019, barring retrial.

Broderick ...

New Hampshire Ends Death Penalty

by Jayson Hawkins 

Michael Addison, the sole occupant of New Hampshire’s death row, is breathing a little easier these days. Thanks to a two-thirds majority in both the state’s House and Senate, the state’s legislature overrode Governor Chris Sununu’s veto of their bill abolishing capital punishment. The ...

California Court of Appeal Explains Procedures to Determine Appropriate Relief When Conviction Is Vacated Based on People v. Chiu and Senate Bill 1437

by Douglas Ankney

The Court of Appeal of California, Third Appellate District, explained the procedures to be followed in determining the appropriate relief when a conviction has been vacated based upon Senate Bill 1437 (“SB 1437”) and People v. Chiu, 325 P.3d 972 (Cal. 2014). 

In 2000, Ricky ...

Connecticut Supreme Court Rules 5 Days Past Due on Rent While Incarcerated Does Not Deprive Defendant of Expectation of Privacy in Home

by Anthony Accurso 

The Supreme Court of Connecticut held that the lower court erred in denying defendant’s search of his apartment where the police failed to obtain a warrant and defendant had a reasonable expectation of privacy in his home, despite being a mere five days past due on ...

Fifth Circuit: First Step Act Doesn’t Permit Plenary Resentencing in Retroactive Application of the Fair Sentencing Act

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ruled that the First Step Act of 2018 (“First Step Act”) does not permit plenary resentencing when the district court retroactively applies the Fair Sentencing Act of 2010 (“Fair Sentencing Act”). In July 2008, Michael Dewayne Hegwood pleaded ...

Groundbreaking Connecticut Law Tracks Information on Jailhouse Snitches

In Michael Connelly’s legal thriller The Lincoln Lawyer, the defense attorney uncovers the dishonest history of a jailhouse snitch. In real life, safeguards against false testimony from jailhouse witnesses are few.

In Connecticut, there is progress. A new law makes each prosecutor’s office responsible for maintaining background on jailhouse ...

Oregon Supreme Court Reaffirms ‘Independent Evidence Rule’ for Accomplice Testimony

by Mark Wilson

The Oregon Supreme Court vacated a man’s convictions on multiple crimes that were based almost entirely on the testimony of his accomplices, who had entered into cooperation agreements with the State. The Court affirmed the longstanding rule that accomplice testimony must be corroborated by “other evidence” and ...

9th Circuit Says Inadvertently Placing Closed Folding Knife on Teller Counter Not Armed Bank Robbery

by Anthony Accurso

The U.S. Court of Appeals for the Ninth Circuit held that inadvertently placing a pocket knife on the counter during a robbery did not constitute “use” of a dangerous weapon during a robbery and overturned the defendant’s plea for lacking the proper factual basis to support his ...

Fifth Circuit Reiterates Diligence Under AEDPA Requires Consideration of Actions Both Before and After Filing of Habeas Petition

by Dale Chappell

The U.S. Court of Appeals for the Fifth Circuit held on August 2, 2019, that the failure of a state court to notify a petitioner that his state habeas petition was denied tolls the one-year clock for filing his federal habeas corpus petition, excusing an 18-month delay ...

Safe Interactions Between Police and Citizens

by Ed Lyon 

Human nature being what it is, since the need for an organized law enforcement body arose, police have generally been a necessary evil.

Judging from the seemingly countless articles detailing officer misconduct in Prison Legal News and Criminal Legal News, police seem to be ...

Fifth Circuit Vacates § 924 Convictions Based on Davis

by Anthony Accurso 

The U.S. Court of Appeals for the Fifth Circuit held that the defendants’ convictions under 18 U.S.C. § 924 could not stand because they likely relied on the residual clause of § 924(c) that was voided for vagueness in United States v. Davis, 139 S. ...

Ninth Circuit Rules IAC for Failure to Investigate Mitigating Evidence During Penalty Phase of Capital Trial

by Anthony Accurso 

The U.S. Court of Appeals for the Ninth Circuit held the California Supreme Court was objectively unreasonable when it denied defendant’s claim that his lawyer provided ineffective assistance of counsel for failing to investigate or present any mitigating evidence at the penalty phase of his capital ...

Is Data Mining an Invasion of Privacy?

by Kevin Bliss

The Northern California Regional Intelligence Center (“NCRIC”) contracted with surveillance and data mining giant Planatir, cofounded by billionaire and PayPal cofounder Peter Thiel, for services in synthesizing information gathered from databases in hospitals, banks, police departments, and other locations into a comprehensive, understandable format for instant use ...

10th Circuit: District Court Must Ensure When Defendant Waives Right to Counsel He Understands He’s Required to Adhere to Federal Procedural and Evidentiary Rules

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit ruled that a district court must ensure that when a criminal defendant waives the right to counsel, the defendant understands he is required to adhere to federal procedural and evidentiary rules. 

Louis Delynn Hansen was indicted for ...

Ninth Circuit: Drug Quantity in PSR Adopted by Sentencing Court not Binding in § 3582(c)(2) Sentence Reduction Proceedings

by Michael Berk

The U.S. Court of Appeals for the Ninth Circuit held that a court determining eligibility for a sentence reduction based on an amended Guidelines range is not bound by the conclusions of a pre-sentence report (PSR) “adopted” at sentencing in the absence of explicit quantity findings by ...

U.S. District Court Grants Savings Clause Petition, Vacates Mandatory Life Sentence

by Dale Chappell

After the case had been sitting in the courts for seven years, the U.S. District Court for the Western District of North Carolina granted relief under the “savings clause” of 28 U.S.C. § 2255, vacating a mandatory life sentence.

Ian Persaud filed his savings clause petition back ...

Tenth Circuit: District Court Abused Discretion in Denying § 2255 Petition Without Hearing Where Record Didn’t Conclusively Show Defendant Not Entitled to Relief

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit ruled that a district court abused its discretion when it denied a 28 U.S.C. § 2255 petition without an evidentiary hearing when the record did not conclusively show the movant was not entitled to relief. 

Pursuant to ...

Hundreds of Missouri Prisoners May Be Released Under New Sentencing Reform Law

by Dale Chappell

Missouri Governor Mike Parson signed into law in early July reforms to the state’s sentencing and parole laws that may help hundreds of prisoners obtain early release. The new measures allow prisoners convicted of nonviolent offenses the chance for earlier parole and could make some prisoners eligible ...

Ex-Felons’ Rights Expanding to Include Jury Duty

by Ed Lyon

At present, it is believed that close to 20 million U.S. citizens are convicted felons. One of the many rights these citizens lost at conviction was jury service in federal courts. Twenty-seven states prohibit exes from jury service. Meanwhile, there are 22 states that do allow ex-felons ...

Connecticut Supreme Court: When Expert’s Testimony Asserts Truth of DNA Profile Prepared by a Different Non-Testifying Expert, Confrontation Clause Is Violated

by Douglas Ankney

The Supreme Court of Connecticut ruled that when an expert witness testifies to the truthfulness and accuracy of a DNA profile prepared by a different expert who did not testify the Confrontation Clause is violated.

Eugene L. Walker and two accomplices attempted to rob Neville Malacai Registe ...

California Court of Appeal Announces Defendant Convicted of Felony Accessory Is Eligible for Resentencing Under Proposition 64

by Douglas Ankney

In a case of first impression, the California Court of Appeal for Division One of the First District announced that a person convicted of felony accessory is eligible for resentencing under Proposition 64. 

In September 2013, William Roy Boatwright was arrested while exiting a house later ...

Alabama OKs Chemical Castration for Some Sex Offenders

by Dale Chappell

Alabama Gov. Kay Ivey signed into law May 30, 2019, a new law that requires certain categories of sex offenders to undergo chemical castration before they can be released from prison. The new law puts Alabama, once again, up against the Constitution and has critics questioning the ...

Third Circuit Announces New Rule for Amending § 2255 Motions on Appeal

by Dale Chappell

In a ruling that further divides the circuits on how and when a motion under 28 U.S.C. § 2255 can be amended, the U.S. Court of Appeals for the Third Circuit held on July 5, 2019, that an amendment filed while the motion is on appeal can ...

Big Brother, Big Business, Big Law Enforcement

by Ed Lyon 

The word ring has traditionally been used as a verb to describe what a bell does, whether it is mounted on a steeple or on the wall inside a residence. A product innovation by Amazon converts it to a trade name: Ring™. 

The home security ...

Faulty Science Still Admissible Evidence in Many States

by Kevin Bliss

More than 40 percent of wrongful convictions are based on faulty forensic science, according to the Innocence Project, which works to help exonerate prisoners it believes have been wrongfully convicted. The nonprofit has been responsible for the exoneration of over 160 people convicted by flawed forensic science. ...

Ninth Circuit Clarifies When Warrantless Searches of Cellphones at Border Are Reasonable

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit has clarified when warrantless searches of cellphones at the border are reasonable.

Customs and Border Patrol (“CBP”) agents discovered nearly 31 pounds of cocaine in the spare tire of Miguel Angel Cano’s vehicle as he attempted to enter ...

Costly Electronic Monitoring Programs Replacing Ineffective Jail Bond Systems

by Kevin Bliss

America’s troubled bail systems that discriminate against the poor and are proven to be a costly and ineffective means of managing pretrial detainees are being replaced with one just as prejudicial but more burdensome. Cities and counties are now utilizing electronic monitoring to keep track of those ...

Defendant’s Flight From Police’s Illegal Frisk Doesn’t Render Improperly Obtained Evidence Admissible in Maryland

by Anthony Accurso 

The Court of Appeals of Maryland held that a defendant’s flight during an illegal stop and frisk did not attenuate the link between the officers’ misconduct and the discovery of evidence to justify the court’s denial of the defendant’s suppression motion. 

Tamere Thornton was sitting ...

Kansas Supreme Court: Expired License Plate Doesn’t Attenuate Evidence from Illegal Seizure

by Douglas Ankney

The Supreme Court of Kansas ruled that an officer’s discovery of an expired license plate subsequent to an illegal seizure did not attenuate the evidence obtained as a result of the illegal seizure. 

Daniel Christian lawfully parked his car on a public street and sat there ...

‘Changes Are a Comin’

by Anthony Accurso

It seems like everyone is talking about criminal justice reform these days. Cross-partisan reforms are happening throughout the county as politicians of nearly all stripes seem to have emerged from a lock’em up binge into the next morning hangover of mass incarceration.

Most of the attention has ...

Forensic Science: Reliable and Valid?

by Jayson Hawkins

The headlines have become too familiar: DNA shows wrong person imprisoned for decades-old crime. 

Over 300 people have been exonerated by DNA evidence, and that number will only continue to rise as more cases are scrutinized. That begs the question of what has led to so ...




 

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