by Brooke Williams, Samata 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 ...
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 Lima was driving his sister’s Nissan Altima when another vehicle pulled alongside him and fired up to eight gunshots at him. Lima later died at a hospital from three gunshot wounds.
Eyewitness Nicholas Melo told police he heard eight or nine loud bangs before seeing a tannish-gold Chevy Malibu Max with a sloped back round the corner near his house, hit the curb, and speed down the street. Melo stated the car would have scrape marks under the left front and right rear from hitting the curb.
The day after the shooting, Detective Christopher McDermott told Brockton Police Detective Michael Schaaf of the shooting and summarized Melo’s description of the Malibu Max.
Schaaf and State Police Trooper Robert Fries were then assigned warrant apprehension duty.
Later that afternoon, Schaaf observed a grayish-green Chevy Malibu driving in the opposite direction with three occupants. Schaaf believed the passenger in the back seat ...
Informants are highly motivated to lie. But jurors don’t always have the information or skills to discern the truth.
by Alexandra Natapoff, The Appeal, a nonprofit criminal justice news site
In February 2010, I was asked to testify as an expert witness to educate a jury about jailhouse informants, the focus of much of my work.
The case, State of Connecticut v. Leniart, was a grim one: an awful, violent, depressing case involving murder, rape, and a missing body. It is the kind of case for which convicted defendants often receive life sentences and, therefore, the kind for which informants are richly rewarded when the government wins.
Most of the main witnesses in the case were informants hoping for a deal. One was the alleged accomplice—a convicted sex offender, serving 10 years for a different felony sexual assault. He admitted to raping the victim and testified to avoid being charged with murder himself. He also testified because the prosecutor promised not to oppose his early release if he cooperated. Three other witnesses were jailhouse snitches who claimed that the defendant personally confessed to them while in jail. Two of them admitted that they were testifying in order ...
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. Legislatures respond in the only way they know: They pass more laws. At what point does passing more and more and more laws just become crazy?
The U.S. Department of Justice (“DOJ”) attempted to do a count of the number of actual criminal laws (presumably federal ones) on the statute books in the 1980s.
The DOJ wound up ceding defeat, perhaps because they were frantically trying to enforce the estimated 300,000 or so laws.
Attorney Mike Chase, author of the book How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender, points out that if he broke just one law every day, it would only take “800 years to finish the job.”
Making matters far worse is Congress granting government regulatory agencies the authority to promulgate regulations that carry the force and effect of law. This creates an entirely new set of laws ...
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 v. United States, 135 S. Ct. 2551 (2015), and now United States v. Davis, 139 S. Ct. 2319 (2019), allowing scores of second or successive motions under 28 U.S.C. § 2255 (“SOS 2255”). As Judge Bev Martin of the U.S. Court of Appeals for the Eleventh Circuit noted in one of her dissenting opinions arguing on behalf of prisoners, “In a short time span, our court got thousands of authorization applications raising Johnson claims.” For almost two decades, the U.S. Attorney’s manual was right. And then it was not, thanks to the Supreme Court.
This article is intended to provide a roadmap for those who have already used up their one good shot at § 2255 relief to get back into federal district court with a SOS 2255 motion. This discussion is focused on getting your motion before the district court, not what the district court might do ...
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 two-year statute of limitations.
In a companion case issued the same day (see below), the Court drew a line between those cases that fall within the so-called “escape clause” in ORS 138.510(3) and those that do not.
Somalia refugee Abdalla Dahir Gutale arrived in the U.S. as a teenager in 2003. When Gutale was 20 years old, he was charged with several Oregon crimes for having sex with a 16-year-old girl in April 2010.
Gutale pleaded guilty to a misdemeanor sex crime, and the remaining charges were dismissed. Under Padilla v. Kentucky, 559 U.S. 356 (2010), Gutale’s trial attorney was required to inform him of the potential immigration consequences of his guilty plea. However, neither trial counsel nor the court gave Gutale any indication that his plea exposed him to any immigration consequences, even when he stated, on the record, that he was pleading guilty because he wished to ...
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 distribute methamphetamine under 21 U.S.C. § 84l(a)(l) and (b)(l)(C) and being a felon in possession of a firearm under18 U.S.C. § 922(g)(l) in 2014. The district court also determined that five of his Minnesota state priors constituted violent felonies, which triggered a 15-year mandatory minimum under § 924(e). The court sentenced him to two 15-year prison terms, one for each count, to be served concurrently and imposed a five-year term of supervision (also the minimum under the ACCA).
Raymond’s sentence was upheld on appeal, four months before the Supreme Court issued its decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Because Johnson struck down the ACCA provision that classified three of his priors as violent felonies, Raymond filed a timely motion under 28 U.S.C. § 2255. The district court agreed that the ACCA statutory minimum no longer applied but denied relief because “his 15-year sentence ...
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 by Boustani.
The district court denied bail, finding that Boustani posed a flight risk because: (1) the charges against Boustani of conspiracy to commit wire fraud, conspiracy to commit securities fraud, and conspiracy to commit money laundering were serious; (2) Boustani faced a possible lengthy sentence if convicted; (3) the evidence against Boustani was strong; and (4) of Boustani’s deceptive actions, along with his access to substantial financial resources, frequent international travel, and ties to foreign countries without extradition.
Additionally, the district court considered that releasing Boustani to a privately funded jail would lead to disparate treatment between him and his codefendants, who might pose flight risks for similar reasons but lacked the financial resources available to Boustani.
The Second Circuit opined that under the Bail Reform Act, a court is required to order the pretrial release of a defendant on personal recognizance or after execution of an ...
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 because they were based on faulty data.
Danish authorities also placed a two-month moratorium on the use of such data to obtain new convictions, a move that has postponed almost 40 trials. The director of the nation’s public prosecutions, Jan Reckendorff, admitted the decision was drastic but necessary.
“We simply cannot live with the idea that information that isn’t accurate could send people to prison,” Reckendorff commented to the Danish state broadcasting system.
Police found several problems with how geolocation data were collected, including mislocating specific cell towers, tying calls to the wrong towers or to multiple towers at the same time, registering only selected calls, and mixing up the sources of text messages.
Reckendorff said it was possible for such mistakes to locate innocent people at crime scenes as well as give criminals false alibis.
Jakob Willer, a spokesperson for Denmark’s telecoms industry association, stated ...
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, instead of challenging them? Now, would you come?
Most of us would go to the conference that supports our views. Why? Because we don’t like to be told we’re wrong. We seek confirmation in what we think and feel. It’s why we watch one TV news channel over another and why we read one newspaper rather than another. We seek out what we want to hear. Maybe it’s a survival instinct. But one thing’s for sure: We all suffer from this. It’s what experts call “confirmation bias.”
A recent study published in the Northeastern University Law Review by D. Kim Rossmo and Joycelyn M. Pollock, professors at Texas State University, exposed how confirmation bias infects criminal prosecutions. They analyzed 275 criminal cases overturned because of actual innocence and identified the most common causes of wrongful convictions in the top 50 of those cases.
What they found was that the thing ...
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 videos of him sexually assaulting three different children, stored on an iPhone, a digital hard drive, a desktop computer, and Dropbox storage account. Elliott pleaded guilty to four counts of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) and three counts of producing child pornography under 18 U.S.C. § 2251(a), reserving his right to appeal the possession counts as being multiplicitous. The district court imposed a sentence of 30 years on each of the three production counts and 20 years on each of the possession counts, all running consecutively for a total of 170 years’ imprisonment.
On appeal, the Tenth Circuit observed, “The Double Jeopardy Clause “protects a defendant against cumulative punishments for convictions on the same offense.” United States v. Benoit, 713 F.3d 1 (10th Cir. 2013). Included in double jeopardy protections are multiple punishments for the same offense based on the total punishment authorized by the ...
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 dunk. Yet an unusual issue prevented the suit.
According to Rhode Island law, Davis was already dead.
An archaic state statute defines anyone sentenced to life as “civilly dead,” which renders their civil rights null and void. Not only do they lack the ability to sue, they cannot be lawfully married or divorced, nor can they hold title to any property. This holds true even if they eventually regain freedom.
The idea of civil death traces its roots to the Classical Greeks and Romans. Criminals facing execution were barred from military service, voting, and other civic privileges.
The Germanic tribes utilized “outlawry,” a similar concept wherein those guilty of certain crimes lost all rights and protections within the community. Much later, the English incorporated civil death into the common laws, and it made its way to America with the colonists. An 1871 court ruling in Virginia declared convicted felons had ...
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 consent to search was based on the inadequate warnings. Finally, the Court suppressed cell-site location information (“CSLI”) because the affidavit in support of the search warrant failed to establish probable cause.
The case was before the Court on interlocutory appeals filed by the Commonwealth and the defendant, Pedro Vasquez.
Shortly after the January 2015 shooting death of Vasquez’s girlfriend, he became a suspect. After Vasquez was arrested, it became apparent that he did not have command of the English language. The detectives asked a Spanish speaking officer who was untrained in interpretation to translate the Miranda warnings and interrogation into Spanish. The officer’s translation was as follows: “1. You have the right to remain quiet. 2. Any thing that you say can be against you … the, of the court. 3. You the right to consult with a lawyer for advice before being and to have him present with you ...
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 was convicted of murdering Ruth Williams based on the testimony of John Kane. Kane testified that the three of them were in the kitchen of Williams’ apartment when Scrimo strangled Williams because she told Scrimo to “go home to his fat, ugly wife.” Scrimo’s defense was that Kane was the killer.
The DNA evidence, including the skin recovered from beneath Williams’ fingernails, belonged to Kane. To further establish his defense, Scrimo sought to introduce evidence from three witnesses who would testify that Kane sold cocaine to Williams and one of the defense witnesses on the night of the murder. Additionally, Kane had, years earlier, choked one of the defense witnesses after the witness had tried to retrieve money from Kane for some diluted cocaine he had sold to her.
Scrimo clearly explained to the court that the testimonial evidence was for the purpose of establishing the identity of Kane as ...
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 Anthony Martin was charged with the robbery of a bank in North Augusta, South Carolina, on April 23, 2009 at 12:20 p.m. That time stamp is critical because Martin’s defense was that it would have been impossible for him to be there because he was in Atlanta with his mother, 150 miles away, not even an hour before the robbery. And his mother gave a statement to defense counsel corroborating Martin’s story, stating that she dropped him off at a bus stop at “around 11:15, 11:30.” However, counsel never told the jury the exact time he was dropped off, which would have shown Martin was not in the area during the robbery.
There wasn’t any physical evidence tying Martin to the crime. The only evidence the State had against Martin was three codefendants who said that Martin committed the robbery. The three codefendants who did commit the crime cooperated with ...
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 the men. Now, the City of Sacramento agrees it’s in the city’s best interest to pay a wrongful death settlement of $2.4 million.
On the night of the incident, police received a call that a suspect was breaking into cars in a neighborhood and dispatched several officers and a helicopter to the area. Recordings of the helicopter state that the suspect was “running for the front yard.”
Mercadal and Robinet confronted a man in a back yard with their weapons drawn. One officer yelled, “Gun!” The two immediately fired 20 rounds into the darkness. Helicopter video shows Clark initially going to lie on the ground. Still, the officers fired a dozen more shots into his prone form.
Clark, a 22-year-old black man, was on his way to see his grandmother. He was entering through the back because the front doorbell did not work and neither his grandmother, Sequita Thompson, nor ...
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 means of reducing its pretrial jail population, but data show it has consistently overestimated the actual risk of releasing incarcerated individuals who have yet to be convicted of a crime.
The PSA was intended to gauge which individuals were more likely to commit new crimes, especially violent ones, prior to trial as well as the risk of them failing to appear at scheduled court dates. The tool does this by classifying each person into a low, moderate, or high risk category. This recommendation is then taken into consideration by a judge who determines if a defendant should he freed and what conditions should be imposed upon that freedom.
Judges at Cook County’s Central Bond Court decide the fates of about 90 individuals a day, typically in under a minute for each case. Although other factors are considered, PSA scores weigh heavily on the decisions. Almost every person rated as high ...
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 the court and placed on probation stemming from his involvement in two burglaries.
The juvenile court imposed various probation conditions, including drug testing, prohibitions on using illegal drugs and alcohol, and associating with people who use drugs. Ricardo objected because there was no indication drugs were associated with his crimes. The judge dismissed the objection because Ricardo had told a probation officer that “he wasn’t thinking” when he committed his offenses and later stated that he had stopped smoking marijuana because it “did not allow him to think clearly.”
Another probation condition required Ricardo to “[s]ubmit ... electronics including passwords under [his] control to search by Probation Officer or peace officer with or without a search warrant at any time of day or night.”
Ricardo challenged this condition as “not reasonably related to the crime or preventing future crime.” The juvenile court upheld the condition on the premise that “minors ...
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 Hanson was convicted of one count of possession of child pornography and was sentenced to 96 months’ imprisonment followed by 60 months of supervised release. Upon release from prison, Hanson began serving his term of supervised release in June 2012. In May 2017, a jury found Hanson guilty of receipt of child pornography.
He agreed to a combined sentencing hearing for both his 2017 conviction (“conviction”) and his violation of supervised release (“violation”). Probation calculated an advisory sentencing range of 210 to 262 months for the conviction but recommended the statutory minimum of 180 months. For the violation, the probation office informed the court that 18 U.S.C. § 3583(k) required a minimum term of 60 months’ imprisonment. Counsel for the Government recommended 20 years for the conviction and 5 years for the violation to be run consecutively “because there are two interests at play.” The district court determined that 15 ...
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 of forgery. The court sentenced him to 15 years in prison, followed by a five-year period of parole. In addition, on one of his forgery convictions, the court sentenced him to 10 years of probation to be served consecutively to his imprisonment but concurrently with his parole.
Allman appealed his identity theft convictions and challenged several aspects of his sentencing. The court of appeals rejected all his claims and affirmed; he appealed to the Colorado Supreme Court.
On appeal before the Court, he argued that identity theft is a continuing offense, and thus his conviction on multiple counts should have merged for sentencing purposes. The Court rejected this argument.
It explained that determining whether an offense is continuing “is a matter of statutory interpretation.” People v. Perez, 367 P.3d 695 (Colo. 2016). Quoting Toussie v. United States, 397 U.S. 112 (1970), the Court instructed that an offense is ...
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 to six suspects: Christian Tyson, Keith Harrison, Kareem Riley, Ramart Wilson, Michael Jobes, and Hassan Jones. Jones was implicated solely by the accounts of Tyson, Riley, and Wilson. Jones was arrested on charges of first and second-degree murder, first-degree felony murder, use of a firearm during a violent crime, armed robbery, and conspiracy to commit carjacking.
At Jones’ jury trial, Tyson, Riley, and Wilson testified pursuant to a plea agreement. Tyson testified that he, Jones, Jobes, and Harrison forced Bhulai from his car at gunpoint. Tyson took Bhulai’s cellphone. Jobes, Harrison, and Jones then shot Bhulai several times. Riley testified that he was sitting with Wilson in Wilson’s car when he heard gunshots shortly before the other four men arrived carrying handguns. Jones told Riley to “hurry up and get us away from here, we just shot someone.”
Wilson testified that a photo on his cellphone depicted Jones and the ...
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 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons. I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.
But in order for § 3582(c)(1)(A) to have a significant impact, federal judges will need to fully embrace and give full effect to their new authority to "reduce the term of imprisonment" whenever and wherever they find that "extraordinary and compelling reasons warrant such a reduction." I have flagged here and here and here some notable examples of judges finding notable reasons sufficient to reduce a sentence. But now I have to note a notable new ruling in which a notable judge seems to conclude there are "extraordinary and compelling reasons" to warrant a sentencing reduction, but ...
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 clause.
On September 9, 2008, Aaron Eugene Copeland pleaded guilty to possession of a firearm as a felon. Although 18 U.S.C. § 922(g) carries a statutory maximum of 10 years, the sentencing court found that three prior convictions — two “serious drug offenses” and a 1981 seconddegree burglary in California — qualified Copeland for the 15-year mandatory minimum sentence under the ACCA, 18 U.S.C. § 924(e). On December 5, 2008, Copeland was sentenced to 15 years’ imprisonment.
Originally, the ACCA sentence enhancement was triggered when sufficient prior convictions were classifiable as “serious drug offenses” or “violent felonies” under any of three provision, known as the elements clause, the enumerated offense clause, and a catch-all residual clause. The U.S. Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), struck down the residual clause as unconstitutionally vague.
As Copeland had filed several unsuccessful collateral attacks prior to the ...
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 counts involving the distribution of heroin and methamphetamine. The court explained that it would provide the jurors with written copies of the jury instructions at the start of trial. As long as the instructions were not subsequently changed, the court made clear it would not read the instructions aloud to the jurors.
Once the evidence was closed, one instruction was added while two were modified. The court read the full text of the three new and modified charges to the jury. True to its word, the court did not read aloud any of the remaining 27 instructions or orally instruct the jury on the substantive law.
Becerra was found guilty of all six charges. He appealed to the Ninth Circuit. On appeal, Becerra argued that the district court erred when it did not read the jury instructions aloud to the jury.
This was not the first time the Court was ...
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 Barnett and Victim were both at the Little Bar (“the bar”). All night long, Victim urged Barnett to go outside and fight him. Victim eventually approached Barnett in a threatening manner in the bar, and the two men fought. The bartenders ordered the men to leave. Before Barnett left, his friend returned some knives to Barnett. Barnett exited the bar and stopped to urinate near a dumpster. Victim approached Barnett and shouted, “Now you’re going to die [expletive].”
Barnett saw a shiny metal object in Victim’s hand coming toward Barnett’s face. Barnett later testified he knocked the Victim’s hand away, shoved Victim to the ground, and left. A witness claimed he saw Victim “drop like a bag of rocks.” Victim was lying on the ground, bleeding from apparent stab wounds. A few hours after the incident, police officers asked Barnett if he stabbed Victim in self-defense, but Barnett adamantly denied ...
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 produced a bag containing what appeared to be methamphetamine. In the vehicle, the deputies found needles, syringes, and spoons.
Fagin was “extremely impaired.” He was booked into the Washington County Jail whereupon he refused both a blood test and a urine test. Nothing in the record indicates the deputies sought a warrant for either test.
Fagin ultimately pleaded guilty to first-degree test-refusal under Minn. Stat. § 169A.20(2). In May 2017, Fagin filed a postconviction petition alleging that his test-refusal conviction was unconstitutional. The district court denied the petition on the grounds that Fagin had failed to prove that an exception to the warrant requirement did not exist. He appealed, and the court of appeals reversed, holding that the district court erred by placing the burden of proof regarding the absence of an exception to the warrant requirement on Fagin instead of the State. The Minnesota Supreme Court granted the State’s ...
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 the evidence.
When death-row prisoner William Satele’s habeas counsel filed an informal request for the prosecutor to turn over evidence held in Satele’s criminal case, he clarified at a hearing that it was “not really” a discovery motion because the court actually possessed the evidence he was seeking and not the prosecutor. “It’s just evidence of the court,” he said.
What counsel wanted to see was ballistics evidence from a gun found in a car Satele was driving hours after the shooting death of a couple during a gang-related and racially-motivated murder connected to the West Side Wilmas gang.
The habeas court denied counsel’s request. Under Penal Code § 1054.9, a habeas petitioner may be granted discovery of evidence “in the possession of the prosecution and law enforcement authorities” if he can show “good cause to believe that access to physical evidence is reasonably necessary to the defendant’s efforts to ...
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 affidavit. Maas swore that a confidential informant told him that earlier the same day the informant had driven another party to a parking lot adjacent to the Baywalk Inn to buy heroin from a black male called “Big Mike,” the brother of “Toonchie.”
Maas swore that he and another officer surveilled the parking lot where they observed a black male leave the hotel and enter then exit at least five vehicles in the parking lot.
Maas also discovered that the occupant of Room 203 was the only guest who had paid in cash and was staying only one night—behavior typical of drug traffickers according to Maas’ training and experience.
This information convinced a state trial judge to issue a search warrant for Room 203. But Maas did not include in his affidavit any damaging information about his confidential informant, viz., the informant was being paid for his services; he ...
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 Process Clause of the Fourteenth Amendment.
Plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell (“Plaintiffs”) were all former criminal defendants in the OPCDC who had pleaded guilty to various offenses. The Plaintiffs were assessed fines and fees ranging from $148 to $901.50. They were subsequently arrested for failure to pay their assessed fines and fees, and they spent from six to fourteen days in jail.
The 12 defendant judges are the current judges of the 12 sections, designated A through J, of the OPCDC, who have exclusive control over the Judicial Expense Fund (“JEF”) as established by La. Rev. Stat. § 13:1381.4.
Approximately one-quarter of the monies deposited into the JEF comes from the Judges’ collection of fines and fees.
Money from the JEF is spent by the Judges on, inter alia, salaries and employment benefits of court personnel (excluding the Judges), ...
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 procedure for obtaining the DNA profiles, colloquially known as “Spit and Acquit,” begins with the OCDA charging between 60,000 to 80,000 people annually with misdemeanors. Indeed, superior court judges suspect that the OCDA files some of those charges simply to get the DNA with no intention of prosecuting the charges. Nearly all of the defendants are not in custody but are herded into a large public courtroom for arraignment. Without any defense counsel present, the OCDA calls a group of defendants into a hallway and explains that they can have their case dismissed or plead to a lesser charge if they submit a DNA sample. The defendants are told to put a cotton swab in their mouth to collect the sample and pay $110. Around 15,000 people per year accept the deal, and as a result, the OCDA has collected over $11 million since the program began. And the defendants ...
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 Charletta Atkinson planned to rob Richard Joiner at a bank ATM. Byrd suggested the plan and provided the gun. But at the last minute, Byrd, who had no criminal record, had a change of heart and told Atkinson, “I can’t do this. This is not for me, I’m not going to do it.”
Atkinson exited their vehicle armed with the pistol. During the ensuing robbery, Joiner resisted. In a struggle for the weapon, the pistol discharged, and Joiner was shot in the head and died. Atkinson returned to the car, and Byrd drove away. Shortly thereafter, Byrd turned himself in to the police. Byrd and Atkinson were both charged with, inter alia, first-degree premeditated murder and first-degree felony murder. Byrd was charged on a theory of aiding and abetting, which under Michigan law subjected him to the same penalties as the principal - a mandatory sentence of life without parole. ...
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 law was plain error that requires resentencing.
Before the Court was the appeal of Jeffrey Green. His apartment in Anchorage, Alaska, was subject to a search warrant executed on June 3, 2016, by a group of police officers. They found a revolver in Green’s pocket and two pistols in a safe. Both pistols had been reported stolen.
As Green had a long history of felony convictions, he was charged with a single count of possession of a firearm as a felon in violation of 18 U.S.C. § 922(G)(1).
Green agreed to a plea agreement in which he admitted to possessing the revolver in his pocket but not to all conduct in the indictment. A pre-sentence report concluded Green was not entitled to a reduction of sentence for accepting responsibility under Sentencing Guidelines § 3E1.1(a) because he had not admitted possessing the two pistols found in the safe.
The district court ...
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).
After Troy Shaw’s conviction was affirmed on direct appeal, he filed a postconviction petition that was denied in the state courts. He then filed a federal petition for writ of habeas corpus. The district court denied the petition, but the U.S. Court of Appeals for the Seventh Circuit vacated the district court’s judgment, holding that Shaw’s appellate counsel was ineffective. The Seventh Circuit remanded with instructions to issue a writ of habeas corpus unless the State of Indiana granted Shaw a new appeal within 120 days.
In Shaw’s second direct appeal, he argued that he was prejudiced when, 17 months after the omnibus date, the prosecution amended the charging information to charge him with murder instead of a Class B felony. But the Court of Appeals affirmed.
Shaw filed another petition for postconviction relief, alleging his appellate attorney failed to properly argue the issues in his new direct appeal. The ...
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 sentence.
In 2005, John Schlick was sentenced to 16 years in prison, with 14 years and six months suspended, and five years of probation upon release. While on probation, Schlick was convicted of another crime. In September 2008, the circuit court imposed a prison term of the 14 years and six months that had been suspended.
After sentencing, Schlick told his attorney to file a motion for a sentence reduction, but his attorney failed to do so.
In 2012, Schlick filed a postconviction motion claiming ineffective assistance of counsel due to his attorney’s failure to file the motion for sentence reduction. The attorney swore under oath that she had failed to file the motion after Schlick had requested her to do so.
On March 20, 2013, the circuit court granted the postconviction motion and gave Schlick 90 days in which to file a motion for a modification of sentence. Schlick ...
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” when sentencing defendants. As an example, suppose you are charged with three murders and a robbery, but the jury acquits you of all charges except the robbery. The prosecutor will still argue to the court that, based on a preponderance of the evidence, the judge should consider your conduct in the murders when determining your sentence for the robbery. This provides a perverse incentive for prosecutors to charge more serious offenses they know they cannot prove. As in the example, the prosecutor charges you with three murders as leverage to get you to plead guilty to the maximum sentence for robbery in exchange for dropping the murder charges. But if you refuse the plea offer, then the prosecutor still wins because he will argue that the judge should consider the acquitted conduct and sentence you to the maximum term for the robbery.
Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) ...
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 Stephon Clark, an unarmed black father of two killed by police in his grandparents’ backyard when officers claimed they mistook his cellphone for a gun.
Under the new law, if investigators determine that an officer used lethal force when there was a reasonable alternative, the officer could face criminal charges, civil liability, and disciplinary action. Current law across the country permits use of force if it is “objectively reasonable,” which civil rights advocates and families of people murdered by police criticize as being a standard that is too low.
Peter Bibring, director of police practices at the American Civil Liberties Union of Southern California, said, “We expect this legislation to save lives.”
But Melina Abdullah, leader of the Los Angeles chapter of Black Lives Matter, said, “Unfortunately, in efforts to get law enforcement to lift their opposition, the bill was so significantly amended that it is no longer the kind ...
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, who was arrested in 2016 on misdemeanor charges for receiving stolen property (her mother’s jewelry) and possession of drugs. Though she had no criminal record, Franklin Magisterial Judge Glenn Manns set Lescalleet’s bail at $75,000 and, when she couldn’t pay, sent her to the county jail. Lescalleet then had two options: plead guilty to the low-level charges to get released or stay in jail and fight the charges. Thirty-one days later, she pleaded guilty and was released.
On any given day, about 500,000 people like Lescalleet sit in county jails because they can’t pay bail. Researchers have found that more than half the people required to pay bail were unable to do so. This means a loss of jobs, housing, and a higher likelihood of them committing a new crime after release. But it also means that they are often forced to plead guilty just so they can get released ...
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 as “BG”). After several years, Thorpe ended the relationship. Ten-year-old BG then accused Thorpe of twice rubbing her vagina over her underwear and of one incident of Thorpe forcing her to touch his bare penis.
Among the witnesses to testify at Thorpe’s trial was Thomas Cottrell. Cottrell had a master’s degree in social work and was vice president of counseling at the YWCA Counseling Center. He was qualified as an expert in the area of child sexual abuse and disclosure. Cottrell neither examined BG nor was provided specific information about the case. He testified for the prosecution as to the broad range of reactions by abused children and as to reasons why a child might delay disclosure.
During cross-examination, Cottrell answered affirmatively when asked if children can lie or manipulate. On redirect, the prosecutor asked what is “the percentage of children who actually do lie?” Defense counsel objected and asked ...
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, public opinion about police conduct in this country has started exploding,” said Michael Otworth, vice president at Genesis Management and Insurance Services Corporation.
“Historically, we’re looking at the highest payouts for law enforcement that we’ve seen in a long time.”
Controversial cases dealing with excessive force, including Michael Brown Jr.’s death in Ferguson, Missouri, in 2014, have led to a loss of public confidence in law enforcement. And Washington, D.C.-area attorney Benjamin Eggert said, “The best explanation of why we’re seeing flat claims with bigger payouts is that the police are doing the same things in 2019 that they were doing five years ago or ten years ago.”
Meanwhile, according to Eggert, the Supreme Court is expanding the protections of the qualified immunity defense to shield police from liability for their misconduct. Qualified immunity is a judicially created doctrine that prohibits an officer from being sued unless the officer violated ...
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 prison for life without parole for the murder of an exchange student in 1991. Hollman was arrested when the vehicle he was driving matched the getaway car involved in the crime.
However, police and prosecutors always had evidence that someone else might have committed the crime. They even had the name of the driver of the getaway car. But they never told Hollman’s lawyers.
The evidence was finally disclosed when Assistant District Attorney Patricia Cummings, head of the DA’s conviction integrity unit, turned over the evidence to Hollman. It was “pretty clear,” she said, that Hollman’s case probably wouldn’t have gone to trial, had he known about the evidence held by the state.
“I don’t think it’s really hit me yet,” Hollman said about his release. “Knowing that you’re in prison for something that you didn’t do and trying to convince people that you’re not lying ... it’s an uphill ...
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 they testify to in court again and again.
As penalties for possessing or lighting up small amounts of pot decrease, it’s time for New York’s finest to reconsider, “I smelled an odor of marijuana” as a pretext to justify warrantless searches of people and vehicles. Sure enough, in some cases prohibited weapons and other contraband are found as a result of the unconstitutional searches. However, the veracity of the stated “underlying” reason for these searches is rapidly wearing thin.
Batya Ungar-Sargon served as a grand juror in the city’s grand jury in the Brooklyn borough in 2018. She remembers hearing city cops citing the marijuana odor mantra as their justification for stopping or searching a person. Ungar-Sargon stated the testifying cops “said it very formulaically,” as if by rote memory.
Bronx Judge April Newbauer finally had more than her fill of this practice. In late July 2019, she issued an ...
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 Facebook and criminally charged him. What exactly did Goldsmith see that sparked his righteous indignation?
Adams County sheriff’s deputy Cory Dorsey stopped a car at the festival, supposedly because of a brake light problem. He escalated the encounter to the point of calling for a drug interdiction dog to search the car. No drugs were found. Later, Goldsmith witnessed Dorsey “body slam” a person Goldsmith happened to know. He observed no reason for Dorsey to assault the citizen.
The Adams County Sheriff Department (“ACSD”) has a Facebook account. In that department’s case, it would be more appropriate to call it a Shamebook account as it displays photos of everyone it arrests. It was here that Goldsmith would subsequently see the mugshot of his acquaintance that Dorsey had body-slammed for apparently no reason. This prompted his Facebook rant.
Therein Goldsmith called Dorsey “a fucking pile of shit,” a “stupid sum bitch,” ...
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 fact: He is an innocent man.
The circumstances of Williams’ case highlight how flawed the American system of justice can be. The victim was a Baton Rouge woman, who was sexually assaulted and then stabbed in her home when a neighbor tried to intervene. Almost a month later, police asked the victim if she could identify her attacker in a photo array that included Williams. She did not pick him but said the perpetrator looked like him. The police produced a second array that also had Williams’ picture, and she repeated that it was not him but someone who looked similar. Additionally, both the victim and her neighbor described the assailant as between 5 feet, 9 inches and 5 feet, 11 inches. Williams stands 5 feet, 4 inches.
Investigators interested in finding the guilty party rather than merely scoring a conviction might have considered other suspects, but the victim was ...
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.
The inconvenient facts that his DNA did not match any found at the crime scene, there was no physical evidence linking him to the crime, and there were no eyewitnesses were easily explained by prosecutors: There were multiple assailants.
Still, for two decades, the only man convicted was Tapp.
In an ironic twist, Dodge’s mother refused to be assuaged by Tapp’s conviction. The more Carol Dodge examined Tapp’s so-called confession and the case’s hard facts, the more convinced she became that her daughter’s killer was still out there. She turned to the flip side of DNA’s cutting edge to come up with the proof.
The July 2019 CLN (p.40) reported that police caught the California Golden State Killer (“GSK”) suspect through a novel use of DNA investigation. By simply buying a membership in FamilyTreeDNA, law enforcement had only to submit DNA collected from prior GSK crime scenes to build a ...
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 a St. Louis County tactical operations unit broke down her door and shot the family dog. “When he said, ‘We’re here because your gas is off,’ I lost it.”
The killing of the Zorich’s 4-year-old pit bull, Kiya, was the last in a series of unfortunate events.
The family was facing foreclosure on their home in April 2014 when they turned off the gas line to avoid yet another bill they could not afford. A neighbor reported them to the police, and the complaint reached Robert Rinck, problem properties unit officer. He requested a warrant to inspect the house — a minor matter of checking the gas line — which somehow resulted in the militarized raid and shooting.
At the ensuing civil trial, Priscilla Gunn, the county’s defense attorney, argued that armored officers and forced entry were necessary due to “a known history of confrontations between members of the Zorich ...
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 was fired upon as he exited the house of a relative. The 27-year-old man had been drunk when a relative called 911 to report Sanchez was speaking irrationally. “Three seconds and two commands later, the officer opened fire. Body-camera footage … captures the five shots that killed Sanchez and a woman’s screams as he fell onto the lawn,” the news site report. The officer, who was not named, is no longer on the police force.
California: There is renewed scrutiny on the Banditos gang, which has police officers who are part of a deputy clique, vox.com reports, “who allegedly engage in violent and potentially criminal behavior while protecting their members and clashing with other law enforcement officers.” A 63-page lawsuit filed against Los Angeles County by eight L.A. county deputies in October 2019 alleges that deputy members of the Banditos routinely harass them, latimes.com reports. “In one September 2018 ...