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Disciplinary Self-Help Litigation Manual

Criminal Legal News: December, 2019

Issue PDF
Volume 2, Number 12

In this issue:

  1. How the Secretive 'Discipline' Process for Federal Prosecutors Buries Misconduct Cases (p 1)
  2. Massachusetts Supreme Court Suppresses Evidence Obtained Following Illegally Prolonged Traffic Stop, Orders New Trial (p 6)
  3. Why Juries Need Expert Help Assessing Jailhouse Informants (p 8)
  4. Law Crazy, Government’s Insatiable Desire to Criminalize All Facets of Life (p 9)
  5. Roadmap for Filing a Second or Successive § 2255 Motion Under Davis (p 10)
  6. Oregon Supreme Court Explains PCR ‘Escape Clause’ Availability for Untimely Filed Petitions (p 12)
  7. Eighth Circuit Vacates Sentence for Improper Supervision Length After ACCA Enhancement Removed (p 14)
  8. Second Circuit Clarifies Conditions for Releasing a Defendant on Bail to Home Detention With Private Armed Security Guards (p 14)
  9. Flaws in Mobile Phone Records Free Danish Prisoners (p 15)
  10. Tell Me What I Want to Hear, Not What I Need to Hear: How Confirmation Bias Causes Wrongful Convictions (p 16)
  11. 10th Circuit: Child Porn Stored on Multiple Devices Constitutes One Count of Possession Under 18 U.S.C. § 2252A(a)(5)(B) (p 18)
  12. Civil Death Laws: When Life is Death (p 18)
  13. Massachusetts Supreme Court Suppresses Evidence Obtained After Miranda Warnings Translated into Spanish Deemed Incapable of Conveying Meaningful Advice (p 19)
  14. Second Circuit: Federal Habeas Relief Warranted Where State Trial Court’s Evidentiary Rulings Deprived Defendant of Right to Present a Complete Defense (p 20)
  15. South Carolina Supreme Court Grants New Trial Based on IAC Because of Botched Alibi Defense (p 20)
  16. $2.4 Million Paid by Sacramento in Wrongful Death Suit of Stephon Clark (p 21)
  17. Risk Assessments in Cook County Ineffective (p 22)
  18. California Supreme Court: Where Electronics Search Condition of Probation Is Not Reasonably Related to Future Criminality, Condition Is Invalid (p 22)
  19. 9th Circuit: Sentence Under 18 U.S.C. § 3583(k) Violated Ex Post Facto Clause When Underlying Offense Was Committed in 2005 (p 24)
  20. In Landmark Opinion, Colorado Supreme Court Announces Courts May Not Sentence Defendant to Both Prison and Probation in Multi-Count Cases (p 26)
  21. Maryland Court of Appeals Abrogates Rule Requiring Corroboration of Accomplices’ Testimony and Announces New Rule (p 27)
  22. Another notable (but ultimately disappointing) ruling about sentence reductions under § 3582(c)(1)(A) after FIRST STEP Act (p 28)
  23. Tenth Circuit: ‘Relevant Background Law’ Trumps Unclear Record in Granting § 2255 Relief From Johnson Error (p 29)
  24. Ninth Circuit Reverses Convictions Where Trial Court Failed to Provide Oral Jury Instructions (p 30)
  25. Missouri Supreme Court Clarifies Defendant Is Entitled to Self-Defense Instruction When Substantial Evidence Supports Instruction Regardless of Whether Defendant Presented Evidence Contrary to Self-Defense (p 30)
  26. Minnesota Supreme Court Announces Heightened Pleading Standard for Birchfield/Johnson Claims Raised in Collateral Postconviction Proceedings (p 31)
  27. California Supreme Court Holds Discovery Statute Requiring ‘Good Cause’ Not Applicable When Evidence Held by Court (p 32)
  28. Seventh Circuit Vacates Conviction and Remands for a Franks Hearing (p 32)
  29. Fifth Circuit: Practices of Orleans Parish Judges in Collecting Fines and Fees Violates Due Process (p 33)
  30. Law Professor Peeks at Prosecutor’s Veiled DNA Database (p 34)
  31. Sixth Circuit Grants § 2254 Habeas Relief in Unusual Case of Attorney Failing to Initiate Plea Negotiations (p 34)
  32. Ninth Circuit: Federal Sentencing Court Must Hear Defendant Before Determining If Acceptance of Responsibility Reduction Applies (p 35)
  33. Indiana Supreme Court: Postconviction Petition Addressing Only Issues From New Trial, New Sentencing, or New Appeal From Federal Court via Habeas Proceedings Is Not a Second Petition Under State Law (p 36)
  34. Maryland Court of Appeals Announces Circuit Court Retains Authority to Exercise Its Revisory Power for Up to Five Years After Granting Belated Postconviction Motion (p 36)
  35. Not Guilty but Punished Anyway (p 37)
  36. New Law Makes It Harder for California’s Cops to Get Away with Killing People (p 37)
  37. High Bail Amounts Lead to Sharp Increase in Franklin, PA, Jail Population (p 38)
  38. Michigan Supreme Court Reverses Criminal Sexual Conduct Convictions in Two Consolidated Cases Due to Improperly Admitted Expert Testimony (p 38)
  39. Payouts for Police Misconduct Claims Rise While Number of Claims Appear to Fall (p 39)
  40. Man Freed Who Sat in Prison Nearly 30 Years While Prosecutors Withheld Evidence of Innocence (p 39)
  41. New York City Cops Can Always Tell by Just the Smell (p 40)
  42. Free Speech Is Sometimes Expensive (p 40)
  43. National Fingerprint Database Frees Man After 36 Years (p 41)
  44. The Two-Edged Sword of DNA Exonerates Another Prisoner (p 41)
  45. $750,000 Settlement for St. Louis County Cops Shooting Dog (p 42)
  46. News in Brief (p 42)

How the Secretive 'Discipline' Process for Federal Prosecutors Buries Misconduct Cases

by Brooke WilliamsSamata Joshi and Shawn Musgrave

This October 10, 2019 article is republished with permission from The Intercept, an award-winning nonprofit news organization dedicated to holding the powerful accountable through fearless, adversarial journalism. Sign up for The Intercept’s Newsletter.

Lashawn Jermaine Johnson spent his 30s in prison law libraries. As he put it in an interview, that was “the only place you were going to find freedom” in prison. Sitting at one of a dozen desktop computers with windows overlooking a quad, Johnson dug through past convictions of the assistant United States attorney who prosecuted him for cocaine trafficking in Billings, Montana.

What he found not only set him free but called into question the convictions of many others behind bars.

James Seykora had been prosecuting federal drug cases for decades in Billings, the largest city in the state with a population just shy of 110,000. Local defense attorneys described him as a hard worker who dutifully sought the harshest penalties for drug crimes. One called him a “trained pitbull” and said “the people to blame were his bosses.” In 2004, he won an award for his sheer number of drug convictions.

But it turned ...

Massachusetts Supreme Court Suppresses Evidence Obtained Following Illegally Prolonged Traffic Stop, Orders New Trial

by Douglas Ankney

The Supreme Judicial Court vacated the convictions of Paulos Tavares, ruling that the trial court failed to suppress evidence that was obtained as the result of an officer extending a vehicle stop without probable cause, which made the evidence the proverbial fruit of the poisonous tree.

John ...

Why Juries Need Expert Help Assessing Jailhouse Informants

Informants are highly motivated to lie. But jurors don’t always have the information or skills to discern the truth.

by Alexandra Natapoff, The Appeala nonprofit criminal justice news site

In February 2010, I was asked to testify as an expert witness to educate a jury about jailhouse ...

Law Crazy, Government’s Insatiable Desire to Criminalize All Facets of Life

by Ed Lyon 

As societal standards continue to evolve, devolve, and change for better or worse, legislatures continue to enact laws to prohibit illegal acts and protect people. New technology always opens opportunities for improvement, as well as attendant avenues for less-than-stellar individuals to take advantage of law-abiding citizens. ...

Roadmap for Filing a Second or Successive § 2255 Motion Under Davis

by Dale Chappell

The U.S. Attorney’s Manual passed out to federal prosecutors just after the Antiterrorism and Effective Death Penalty Act (“AEDPA”) was passed in 1996 had an interesting observation: “Under the AEDPA, federal prisoners will rarely be able to file second or successive motions.” But then came along Johnson ...

Oregon Supreme Court Explains PCR ‘Escape Clause’ Availability for Untimely Filed Petitions

by Mark Wilson

The Oregon Supreme Court held that an untimely post-conviction relief (“PCR”) proceeding may be filed if the legal and factual basis for a claim could not have been accessed, and a reasonable person would not have thought to investigate the existence of that claim within the applicable ...

Eighth Circuit Vacates Sentence for Improper Supervision Length After ACCA Enhancement Removed

by Anthony Accurso

The U.S. Court of Appeals for the Eighth Circuit held that after the defendant’s ACCA enhancement was struck his sentence must be vacated because the court lacked jurisdiction to impose more supervision than allowed by statute. 

Travis Ryan Raymond was convicted on possession with intent to ...

Second Circuit Clarifies Conditions for Releasing a Defendant on Bail to Home Detention With Private Armed Security Guards

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit clarified the circumstances when a defendant’s bail may include home confinement coupled with private armed security guards.

Jean Boustani applied for bail pending trial, proposing conditions that included home confinement under supervision of private security guards paid for ...

Flaws in Mobile Phone Records Free Danish Prisoners

by Jayson Hawkins 

Over 10,000 criminal cases have come under review in Denmark due to doubts that have arisen about how reliable evidence taken from cellphone geolocation software actually is. As of mid-­September 2019, 32 prisoners have been released as a result of demanding their convictions be overturned ...

Tell Me What I Want to Hear, Not What I Need to Hear: How Confirmation Bias Causes Wrongful Convictions

by Dale Chappell

What if I invited you to a conference at a fancy hotel where experts would present solid evidence that questions the validity of something you strongly believe, like maybe climate change? Would you come? What if those experts instead were to speak in support of your views, ...

10th Circuit: Child Porn Stored on Multiple Devices Constitutes One Count of Possession Under 18 U.S.C. § 2252A(a)(5)(B)

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that child pornography stored on multiple devices at the same location and at the same time is only one count of possession under 18 U.S.C. § 2252A(a)(5)(B).

Samuel Elliott had over 8,000 images of child pornography, including ...

Civil Death Laws: When Life is Death

by Jayson Hawkins

Certain human rights are inalienable, even for incarcerated individuals. When Joshua Davis received a shot of insulin in 2018 that was tainted with other prisoners’ blood, the resulting lawsuit against the institution that risked exposing him to a host of deadly diseases should have been a slam ...

Massachusetts Supreme Court Suppresses Evidence Obtained After Miranda Warnings Translated into Spanish Deemed Incapable of Conveying Meaningful Advice

by David Reutter

The Supreme Judicial Court of Massachusetts affirmed the suppression of custodial statements where the translation of Miranda warnings into Spanish was inadequate to apprise the defendant of his rights. The Court also reversed the denial of the suppression of evidence taken from the defendant’s cellphone because the ...

Second Circuit: Federal Habeas Relief Warranted Where State Trial Court’s Evidentiary Rulings Deprived Defendant of Right to Present a Complete Defense

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit instructed a district court to issue a conditional writ of habeas corpus based on a state court’s erroneous application of evidentiary rules that resulted in the denial of the defendant’s right to present a complete defense.

Paul Scrimo ...

South Carolina Supreme Court Grants New Trial Based on IAC Because of Botched Alibi Defense

by Dale Chappell

A unanimous Supreme Court of South Carolina held that trial counsel was constitutionally ineffective for failing to present specific details of an alibi defense that the Court said undermined the confidence in the outcome of the trial and remanded for a new trial.

The case started when ...

$2.4 Million Paid by Sacramento in Wrongful Death Suit of Stephon Clark

by Kevin Bliss

Two Sacramento, California, police officers, Terrance Mercadal and Jared Robinet, fatally shot Stephon Clark on March 18, 2018, amid accusations of racial profiling and excessive use of force.

The District Attorney (“DA”) stated that the force used was lawful and that no charges would be filed against ...

Risk Assessments in Cook County Ineffective

by Jayson Hawkins

Risk assessments have been championed as a tool to help remove bias from criminal justice decisions. While there have been improvements in some areas, overall performance has fallen short of many expectations. Cook County, Illinois, began using the Public Safety Assessment (“PSA”) four years ago as a ...

California Supreme Court: Where Electronics Search Condition of Probation Is Not Reasonably Related to Future Criminality, Condition Is Invalid

by Douglas Ankney

The Supreme Court of California held that where an electronics search condition of probation is not reasonably related to future criminality the condition is invalid under People v. Lent, 541 P.2d 545 (Cal. 1975).

In 2014, the juvenile defendant (identified as “Ricardo”) was declared a ward of ...

9th Circuit: Sentence Under 18 U.S.C. § 3583(k) Violated Ex Post Facto Clause When Underlying Offense Was Committed in 2005

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit held that a sentence under 18 U.S.C. § 3583(k) for revocation of a term of supervised release that was imposed as a result of crimes that occurred in 2005 violated the Ex Post Facto Clause.

In 2007, Tommy ...

In Landmark Opinion, Colorado Supreme Court Announces Courts May Not Sentence Defendant to Both Prison and Probation in Multi-Count Cases

by Richard Resch

The Supreme Court of Colorado unanimously held that sentencing courts may not impose imprisonment for certain offenses and probation for others when sentencing for multiple offenses in the same case.

Frederick Leroy Allman was convicted of numerous charges, including seven counts of identity theft and two counts ...

Maryland Court of Appeals Abrogates Rule Requiring Corroboration of Accomplices’ Testimony and Announces New Rule

by Douglas Ankney

The Maryland Court of Appeals abrogated the rule that required the testimony of accomplice(s) be independently corroborated and replaced it with a new rule.

In August 2015, Sandeep Bhulai’s body was discovered lying next to his vehicle. He had been shot multiple times. The investigation led police ...

Another notable (but ultimately disappointing) ruling about sentence reductions under § 3582(c)(1)(A) after FIRST STEP Act

by Professor Douglas A. Berman, Sentencing Law and Policy blog (sentencing.typepad.com)

As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of ...

Tenth Circuit: ‘Relevant Background Law’ Trumps Unclear Record in Granting § 2255 Relief From Johnson Error

by Michael Berk

The U.S. Court of Appeals for the Tenth Circuit reversed the denial of a successive motion under 28 U.S.C. § 2255, remanding the case for resentencing where the “relevant background legal environment” demonstrated that his sentence was based on the Armed Career Criminal Act’s (“ACCA”) unconstitutional residual ...

Ninth Circuit Reverses Convictions Where Trial Court Failed to Provide Oral Jury Instructions

by Chad Marks

The U.S. Court of Appeals for the Ninth Circuit ruled that the district court’s failure to provide oral jury instructions on the applicable substantive law constitutes structural error requiring reversal of defendant’s conviction.

In February 2016, Cesar Becerra exercised his right to a jury trial on six ...

Missouri Supreme Court Clarifies Defendant Is Entitled to Self-Defense Instruction When Substantial Evidence Supports Instruction Regardless of Whether Defendant Presented Evidence Contrary to Self-Defense

by Douglas Ankney

The Supreme Court of Missouri clarified that a defendant is entitled to a self-defense jury instruction whenever there is substantial evidence to support the submission of the instruction, and the fact that a defendant presents evidence contrary to the theory of self-defense is not an exception.

Andrew ...

Minnesota Supreme Court Announces Heightened Pleading Standard for Birchfield/Johnson Claims Raised in Collateral Postconviction Proceedings

by Douglas Ankney

The Supreme Court of Minnesota announced a heightened pleading standard when a petitioner asserts a Birchfield/Johnson claim for relief in a collateral postconviction motion.

On March 22, 2012, deputies from the Washington County Sheriff’s Department found Jason Fagin asleep in his car. A pat search of Fagin ...

California Supreme Court Holds Discovery Statute Requiring ‘Good Cause’ Not Applicable When Evidence Held by Court

by Dale Chappell

Must a habeas petitioner in California show “good cause” under the habeas discovery statute to obtain evidence held by the court, just like he must do if the State held the evidence? No, a unanimous Supreme Court of California held, ordering the habeas court to reconsider releasing ...

Seventh Circuit Vacates Conviction and Remands for a Franks Hearing

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit vacated Michael Clark’s conviction and remanded for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

Investigator Todd Maas is a police officer in Superior, Wisconsin. He prepared a warrant application and signed the supporting ...

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 ...

Law Professor Peeks at Prosecutor’s Veiled DNA Database

by Douglas Ankney

In April 2007, the Orange County (California) District Attorney (“OCDA”) began what has become the largest database of DNA profiles not created by legislative act. Shrouded in secrecy until now, UC Berkeley Law Professor Andrea Roth has pulled back the curtain to reveal a perverse creature.

The ...

Sixth Circuit Grants § 2254 Habeas Relief in Unusual Case of Attorney Failing to Initiate Plea Negotiations

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit reversed the decision of a district court that denied habeas relief. In an unusual ruling, the Sixth Circuit found that defense counsel was ineffective for failing to initiate plea negotiations.

In February 2010, Curtis Byrd and his girlfriend ...

Ninth Circuit: Federal Sentencing Court Must Hear Defendant Before Determining If Acceptance of Responsibility Reduction Applies

by David Reutter

The U.S. Court of Appeals for the Ninth Circuit held that a “sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Sentencing Guidelines.” The Court concluded the misapprehension of ...

Indiana Supreme Court: Postconviction Petition Addressing Only Issues From New Trial, New Sentencing, or New Appeal From Federal Court via Habeas Proceedings Is Not a Second Petition Under State Law

by Douglas Ankney

The Supreme Court of Indiana held that a postconviction petition that raises only issues emerging from the new trial, new sentencing, or new appeal obtained from a federal court through habeas proceedings is not a second or successive petition under Indiana Post-Conviction Rule (“Ind. P-C. R.”) 1(12). ...

Maryland Court of Appeals Announces Circuit Court Retains Authority to Exercise Its Revisory Power for Up to Five Years After Granting Belated Postconviction Motion

by Douglas Ankney

In a case of apparent first impression, the Court of Appeals of Maryland announced that a circuit court has authority to revise a criminal defendant’s sentence for up to five years from the date the circuit court granted postconviction relief, permitting a belated motion for modification of ...

Not Guilty but Punished Anyway

by Douglas Ankney

Many people are aware that Pilate found Jesus “not guilty,” but Jesus was sentenced to death anyway. Fortunately, the American system of justice doesn’t permit such outcomes. Or does it?

According to reason.com, federal judges can — and often do — use what is called “acquitted conduct” ...

New Law Makes It Harder for California’s Cops to Get Away with Killing People

by Douglas Ankney

Beginning January 1, 2020, cops in California will be allowed to use deadly force only when the “officer reasonably believes ... that deadly force is necessary to defend against an imminent threat of death or serious bodily injury.”

The law was inspired by the 2018 shooting of ...

High Bail Amounts Lead to Sharp Increase in Franklin, PA, Jail Population

by Dale Chappell

In Franklin County, Pennsylvania, a rural area with about 154,000 residents, high bail amounts are forcing people who can’t afford to purchase their freedom to plead guilty just to get out of jail for what are typically small-time misdemeanors.

Take, for example, the case of Tiana Lescalleet, ...

Michigan Supreme Court Reverses Criminal Sexual Conduct Convictions in Two Consolidated Cases Due to Improperly Admitted Expert Testimony

by Douglas Ankney

The Supreme Court of Michigan reversed convictions for criminal sexual conduct in two consolidated cases due to improperly admitted testimony of expert witnesses.

Joshua Thorpe was in a relationship with Chelsie. The couple had a daughter together. Chelsie also had a daughter from a previous relationship (identified ...

Payouts for Police Misconduct Claims Rise While Number of Claims Appear to Fall

by Douglas Ankney

Municipalities and insurers are spending more in costs and payouts from law enforcement misconduct claims, but it appears that the total number of claims is dropping.

The rise in costs may be attributed to the heightened public focus on holding police accountable. “In the last five years, ...

Man Freed Who Sat in Prison Nearly 30 Years While Prosecutors Withheld Evidence of Innocence

by Dale Chappell

A man who sat in prison for almost 30 years because prosecutors and police withheld evidence that someone else committed the crime was set free July 16, 2019, after a Philadelphia judge said he was “likely innocent.”

In 1993, Chester Hollman III was convicted and sent to ...

New York City Cops Can Always Tell by Just the Smell

by Ed Lyon

As far as marijuana is concerned, the New York City Police Department (“NYPD”) has little need for a canine corps. The city’s two-legged, blue-clad human-type cops seem to have the best olfactory sense in the world for detecting “the odor of marijuana.” At least, that is what ...

Free Speech Is Sometimes Expensive

by Ed Lyon

Jon Goldsmith of Montgomery County, Iowa, attended a summer festival last year in adjoining Adams County. He witnessed police misconduct there so outrageous he felt he had to make the public aware of it. Unfortunately for him, the police did not agree with his colorful expressions on ...

National Fingerprint Database Frees Man After 36 Years

by Jayson Hawkins

Archie Williams seemed doomed to die in prison. Sentenced to life without parole for a 1982 stabbing and rape, he managed to survive in Louisiana’s Angola as months bled into years, and years pooled into decades. Where others may have lost hope, Williams clung to one forlorn ...

The Two-Edged Sword of DNA Exonerates Another Prisoner

by Ed Lyon

In 1996, 20-year-old Idaho Falls, Idaho, citizen Christopher Tapp was convicted of raping and murdering 18-year-old Angie Dodge. Tapp did not finish high school, so he was no match for educated cops who relentlessly interrogated him nine times over three-and-a-half weeks for a total of 25 hours. ...

$750,000 Settlement for St. Louis County Cops Shooting Dog

by Jayson Hawkins

They put me and my son on our knees to watch her die. The officer squatted over her while she was dying with the search warrant, and he said, ‘You know why we’re here?’ and I said, ‘No, I don’t know,’” Angela Zorich recalled of the day ...

News in Brief

California: A district attorney investigation is looking at why police in San Bernardino fatally shot Richard Sanchez, a resident who obeyed police orders during an encounter with law enforcement: He dropped his gun and put his hands up, washingtonpost.com reports October 26, 2019, one year after the incident. Sanchez ...

 

 

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