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Prisoner Education Guide

Criminal Legal News: February, 2019

Issue PDF
Volume 2, Number 2

In this issue:

  1. Capital Punishment in the United States: Explained (p 1)
  2. Pennsylvania Supreme Court Holds Defendant Unambiguously Invoked Right to Remain Silent Suppresses Confession and Derivative Physical Evidence and Announces New Rule (p 8)
  3. Habeas Hints: SCOTUS Review 2017-18 (p 10)
  4. America’s Cities Are Criminalizing Homelessness (p 12)
  5. South Carolina Supreme Court Holds Broken Chain of Custody for Drug Evidence Requires Reversal of Conviction (p 13)
  6. President Trump Signs First Step Act Into Law—It’s a Good Initial Attempt at Meaningful Reform (p 14)
  7. N.Y. Court of Appeals Announces When Trial Commences for Timeliness of Pro Se Requests (p 15)
  8. Iowa Supreme Court Announces New SOL Rule for Consecutive Postconviction IAC Claims (p 16)
  9. Ninth Circuit Remands Drug Case for Reconsideration of Sentencing Guidelines’ Minor-Role Adjustment (p 16)
  10. Washington Supreme Court Announces Effective Date of Certificate of Discharge Is Date Offender Completes All Sentence Requirements (p 18)
  11. Fourth Circuit Vacates USSG Career Offender Sentence Predicated on Georgia Robbery (p 18)
  12. Study Shows Reassigning Problem Cops Could Have Saved Chicago More than $6 Million in Lawsuit Payouts (p 19)
  13. Minnesota Supreme Court Clarifies Rule Against Judicial ‘Participation’ in Plea Negotiations (p 20)
  14. Public Support for Militarized Policing Ebbs, Fails to Improve Safety (p 21)
  15. West Virginia Supreme Court Vacates Sentence After State Violates Plea Bargain by Making Recommendation at Sentencing (p 22)
  16. Tenth Circuit Clarifies Proper Test for Pretrial Hearing on Seized Assets Needed to Retain Counsel (p 22)
  17. Maine Supreme Court Rules Double Jeopardy Bars Re-Use of Evidence at Second Trial After Acquittal Based on Same Evidence at First Trial on Different Charges (p 23)
  18. Sixth Circuit Holds Tennessee Burglary Not Violent Felony Under ACCA, Overturning Previous Controlling Authority in Light of SCOTUS’ Mathis Opinion (p 24)
  19. Montana Supreme Court: City May Not Impose Local Surcharge Not Authorized by State Law for Violation of State Criminal Statute (p 25)
  20. Wisconsin Supreme Court Rules Attempt to Close Door in Officer’s Face Clear Signal that Consent Not Given for Warrantless Entry (p 26)
  21. Report: Bitemark Analysis Debunked as Pseudoscience (p 26)
  22. California Court of Appeal: Commissioner Cannot Preside Over Parole Revocation Hearing Absent Stipulation (p 27)
  23. Montana Supreme Court Overrules Its Precedents Confusing Venue and Jurisdiction, Announces Venue Is Waivable But Cannot Waive Jurisdiction (p 28)
  24. Georgia Supreme Court: Asportation Required to Support Kidnapping Conviction (p 28)
  25. Sixth Circuit: Tennessee Aggravated Sexual Battery Is Not a SORNA Tier III Offense (p 29)
  26. Nevada Supreme Court Reverses Convictions Where Trial Court Failed to Conduct Third Step of Batson Challenge (p 30)
  27. Texas Court of Criminal Appeals Rules Defense Attorney Violated McCoy, Reverses Capital Convictions and Orders New Trial (p 30)
  28. DEA Agents Trap Cocaine-Trafficking Suspects with Doctored Blackberrys (p 31)
  29. Federal Judge Signals That Defense Counsel Will Be Permitted To Argue Jury Nullification in Questionable Child Porn Prosecution (p 31)
  30. Montana Supreme Court: Retrial Following Mistrial Declared Without 
‘Manifest Necessity’ Violates Prohibition on Double Jeopardy (p 32)
  31. U.S. Senator Sounds Alarm on Privacy, Public Safety Concerns of Cell-Site Simulators (p 32)
  32. ‘Texas Reneging on Deal’ With Draconian Sex Offender Registry, but Some Are Fighting Back (p 33)
  33. Investigation and Arrest of Mail Bomb Suspect Rips Cover Off Postal Surveillance (p 34)
  34. Louisiana Ends Jim Crow-era Law: Unanimous Jury Requirement Now in Constitution (p 34)
  35. Juror Bias Often Triggered by Severity of Crime Charged (p 35)
  36. Campus Cops on Municipal Streets Raises Transparency and Accountability Concerns (p 35)
  37. Police Commit Significant Number of Sex Crimes, Which May Shock the General Public but Not Those Familiar with Law Enforcement (p 36)
  38. Washington Governor Expects to Pardon About 3,500 for Single Misdemeanor Pot Convictions (p 36)
  39. ‘Innocent Man Almost Executed’ Freed After Decade on Death Row (p 37)
  40. Illinois Law on Informants Designed to Avoid Wrongful Convictions (p 37)
  41. Why Defining a ‘Credible Witness’ in Criminal Trials Is a Slippery Slope (p 38)
  42. Massachusetts Drug Lab Scandal: Thousands More Cases Likely Affected (p 40)
  43. $225,000 Settlement by Detroit for Unjustified Shooting of Dogs in Drug Case (p 40)
  44. Tracking the Prevalence of Police Crime (p 41)
  45. Former Balch Springs, Texas, Officer Found Guilty of Murder of Black Teen (p 41)
  46. Race-Based Arrests Rampant in San Francisco (p 42)
  47. News in Brief (p 42)

Capital Punishment in the United States: Explained

by Jessica Brand and Callie Heller, The Appeal

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

In August 2018, the state of Tennessee executed Billy Ray Irick, the first man executed in the state since 2009. He had spent over 30 years on death row ...

Pennsylvania Supreme Court Holds Defendant Unambiguously Invoked Right to Remain Silent Suppresses Confession and Derivative Physical Evidence and Announces New Rule

by Chad Marks

The Supreme Court of Pennsylvania ruled that a police officer’s continued interrogation after the accused told the interrogator he was done talking violated his Fifth Amendment right to remain silent, requiring suppression of both his confession and derivative physical evidence.

On August 7, 2015, Joshua Michael Lukach ...

Habeas Hints: SCOTUS Review 2017-18

by Attorneys Kent Russell and Tara Hoveland

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on “AEDPA,” the federal habeas corpus law, which now governs habeas corpus practice in ...

America’s Cities Are Criminalizing Homelessness

by Matt Clarke

Across the United States, cities are adopting ordinances that effectively criminalize homelessness. The behavior banned includes: sitting, lying down, or placing property on a sidewalk; camping or sleeping in public (including in a vehicle); standing on a roadway median; blocking a sidewalk; loitering; panhandling; and sharing food ...

South Carolina Supreme Court Holds Broken Chain of Custody for Drug Evidence Requires Reversal of Conviction

by Dale Chappell

In a case where the State failed to prove the complete chain of custody of the evidence it relied on at trial, the Supreme Court of South Carolina ruled the evidence inadmissible and that the conviction had to be reversed.

After Timothy Pulley was stopped by two ...

President Trump Signs First Step Act Into Law—It’s a Good Initial Attempt at Meaningful Reform

by Chad Marks

In December 2018, President Trump signed the bipartisan First Step Act into law. It’s the most substantial change in a generation to the tough-on-crime prison and sentencing laws that have cost taxpayers billions of dollars and destroyed countless families, sending many non-violent offenders to prison for decades ...

N.Y. Court of Appeals Announces When Trial Commences for Timeliness of Pro Se Requests

by Ed Lyon

As most jurisdictions do from time to time as need dictates, they change or even completely overhaul appellate procedures, evidentiary rules, and various codes. In 1971, New York state adopted a new Criminal Procedure Law (“CPL”) to replace its aged Code of Criminal Procedure (“CCP”).

In February ...

Iowa Supreme Court Announces New SOL Rule for Consecutive Postconviction IAC Claims

by Dale Chappell

Citing constitutional problems if a petitioner is denied a remedy where defense counsel was ineffective, the Supreme Court of Iowa announced a new rule to allow a subsequent postconviction review (“PCR”) petition raising the same ineffective assistance of trial counsel (“IAC”) claim even after the statute of ...

Ninth Circuit Remands Drug Case for Reconsideration of Sentencing Guidelines’ Minor-Role Adjustment

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit vacated a drug defendant’s sentence because the district court may have misinterpreted United States Sentencing Guideline (“USSG”) § 3B1.2 and Amendment 794, which allow a court to make a Guidelines adjustment when a defendant played a ...

Washington Supreme Court Announces Effective Date of Certificate of Discharge Is Date Offender Completes All Sentence Requirements

by Chad Marks

The Supreme Court of Washington ruled that the effective date of a certificate of discharge (“COD”) for an offender who is not in Department of Corrections (“DOC”) custody at the time the sentence is completed is the date the offender completes all requirements of the sentence.

Waylon ...

Fourth Circuit Vacates USSG Career Offender Sentence Predicated on Georgia Robbery

by Christopher Zoukis

The U.S. Court of Appeals for the Fourth Circuit vacated a prisoner’s sentence because the district court improperly found that Georgia robbery qualified the defendant for the U.S. Sentencing Guidelines career offender designation. The Court sent the case back to the lower court for resentencing ...

Study Shows Reassigning Problem Cops Could Have Saved Chicago More than $6 Million in Lawsuit Payouts

by Dale Chappell

A study by Northwestern University concluded that by simply reassigning officers with the most citizen complaints could have saved the Chicago Police Department more than $6 million in lawsuit payouts between 2009 and 2014.

“The belief that a small number of officers are responsible for an outsized ...

Minnesota Supreme Court Clarifies Rule Against Judicial ‘Participation’ in Plea Negotiations

by Dale Chappell

The Supreme Court of Minnesota clarified the rule barring judicial “participation” in plea negotiations, overturning decades of decisions by the court of appeals, which had applied the wrong rule of law in such cases.

When Jetaun Wheeler was accused of murder, the State offered a plea to ...

Public Support for Militarized Policing Ebbs, Fails to Improve Safety

by Ed Lyon

The 1970s television show S.W.A.T., along with its resurrection in the movie and TV show by the same name, portrayed police officers in Special Weapons and Tactics (“SWAT”) units as top cops doing a difficult (yet occasionally required) necessary-but-evil job.

According to the conclusions ...

West Virginia Supreme Court Vacates Sentence After State Violates Plea Bargain by Making Recommendation at Sentencing

by Matt Clarke

The Supreme Court of Appeals of West Virginia ruled that a prosecutor’s recommendation that sentences should be served consecutively violated a plea agreement requiring the State to “remain silent on a recommendation at sentencing.” The Court vacated the sentence and remanded the case for resentencing before ...

Tenth Circuit Clarifies Proper Test for Pretrial Hearing on Seized Assets Needed to Retain Counsel

by Matt Clarke

The Tenth Circuit Court of Appeals ruled that the proper test for whether a district court should hold a pretrial hearing on a motion challenging the seizure of assets is whether the defendant has sufficient unseized assets to pay the reasonable costs of retaining his choice of ...

Maine Supreme Court Rules Double Jeopardy Bars Re-Use of Evidence at Second Trial After Acquittal Based on Same Evidence at First Trial on Different Charges

by Dale Chappell

The Supreme Judicial Court of Maine held that double jeopardy barred the use of the same evidence used in a first trial that resulted in an acquittal on other charges during a second trial on a different charge.

John Weckerly was indicted in 2012 on, among other ...

Sixth Circuit Holds Tennessee Burglary Not Violent Felony Under ACCA, Overturning Previous Controlling Authority in Light of SCOTUS’ Mathis Opinion

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held that Tennessee third-degree burglary, as interpreted by the Tennessee Supreme Court, cannot qualify as generic burglary under the Armed Career Criminal Act (“ACCA”), granting 28 U.S.C § 2255 relief and vacating an 18-year ACCA ...

Montana Supreme Court: City May Not Impose Local Surcharge Not Authorized by State Law for Violation of State Criminal Statute

by Derek Gilna

Corrine Franklin, who pleaded guilty to disorderly conduct in Missoula, Montana, Municipal Court, was assessed a $25 surcharge by the City of Missoula, earmarked for a fund for the City Attorney’s Office. She objected to that surcharge, and on September 11, 2018, the Montana Supreme Court agreed ...

Wisconsin Supreme Court Rules Attempt to Close Door in Officer’s Face Clear Signal that Consent Not Given for Warrantless Entry

by Douglas Ankney

On December 7, 2018, the Supreme Court of Wisconsin reversed a decision of the court of appeals that affirmed a circuit court’s denial of a motion to suppress. The Court ordered the challenged evidence be suppressed and instructed the circuit court to vacate the convictions.

In December ...

Report: Bitemark Analysis Debunked as Pseudoscience

by Richard Resch

Unreliable bitemark identification evidence used in criminal cases has led to 31 exonerations, forensicmag.com reports.

“The unsupported comparison of such bite marks left in human skin during rapes, murders and other violent attacks should be totally thrown out of forensic science,” says the magazine, citing ...

California Court of Appeal: Commissioner Cannot Preside Over Parole Revocation Hearing Absent Stipulation

by Douglas Ankney

On December 5, 2018, the Court of Appeal of California, Fourth Appellate District, ruled that a commissioner may not preside over a parole revocation hearing absent a stipulation by the parties.

In June 2017, Brandon Berch was accused of violating his parole. Berch objected to Commissioner Edward ...

Montana Supreme Court Overrules Its Precedents Confusing Venue and Jurisdiction, Announces Venue Is Waivable But Cannot Waive Jurisdiction

by Dale Chappell

Overruling its precedent, the Supreme Court of Montana held that venue is not a jurisdictional element and may be waived by a defendant. However, it also confirmed that the State is still required to prove jurisdiction beyond a reasonable doubt, which is not waivable.

Ryan Frankforter was ...

Georgia Supreme Court: Asportation Required to Support Kidnapping Conviction

by David Reutter

The Supreme Court of Georgia granted a habeas corpus petition and held there was insufficient evidence of asportation to support the kidnapping charges of appellant Jessie Mercer.

Mercer was convicted in 2004 of kidnapping Richard and Parchando Love. He also was convicted of armed robbery and two ...

Sixth Circuit: Tennessee Aggravated Sexual Battery Is Not a SORNA Tier III Offense

by Christopher Zoukis

The U.S. Court of Appeals for the Sixth Circuit ruled that a defendant previously convicted of aggravated sexual battery in Tennessee should not have been classified as a Tier III sex offender under the Sex Offender Registration and Notification Act (“SORNA”). The June 8, 2018, opinion ...

Nevada Supreme Court Reverses Convictions Where Trial Court Failed to Conduct Third Step of Batson Challenge

by Chad Marks

The Supreme Court of Nevada ruled that a trial court’s failure to properly conduct the three-step Batson analysis when a prospective juror is allegedly dismissed on the basis of race constitutes a structural error necessitating a new trial.

Gregory Anthony Williams was convicted of six counts of ...

Texas Court of Criminal Appeals Rules Defense Attorney Violated McCoy, Reverses Capital Convictions and Orders New Trial

by Chad Marks

The Court of Criminal Appeals of Texas ruled that defense counsel’s actions conceding guilt against defendant’s express wishes during trial violated his Sixth Amendment rights under McCoy.

Albert Turner was charged with the December 2009 killing of both his wife and mother-in-law. His 12-year-old daughter witnessed the ...

DEA Agents Trap Cocaine-Trafficking Suspects with Doctored Blackberrys

by Derek Gilna

Drug Enforcement Administration (“DEA”) agents apparently supplied suspected cocaine-traffickers with smartphones that the users thought were encrypted but instead were modified with eavesdropping technology.

According to Human Rights Watch (“HRW”), it is unknown how often the DEA or other federal agencies have utilized this technique. However, the ...

Federal Judge Signals That Defense Counsel Will Be Permitted To Argue Jury Nullification in Questionable Child Porn Prosecution

by Chad Marks

Yehudi Manzano, a man in his 30s, was charged with producing and transporting child pornography. Manzano allegedly recorded a sexual encounter with his teenage sex partner. He then saved that video and sent it to and from his own phone.

The U.S. Attorney’s Office in Connecticut ...

Montana Supreme Court: Retrial Following Mistrial Declared Without 
‘Manifest Necessity’ Violates Prohibition on Double Jeopardy

by Mark Wilson

The Supreme Court of Montana held that a municipal court violated state and federal double jeopardy prohibitions when it declared a mistrial and ordered a new trial.

James Joseph Huertas was charged in Billings Municipal Court with Partner or Family Member Assault (“PFMA”). The victim was identified ...

U.S. Senator Sounds Alarm on Privacy, Public Safety Concerns of Cell-Site Simulators

by Derek Gilna

A U.S. senator has added his voice to those of privacy experts who have expressed concern about the use of cell-site simulators (“CSSs”) also known as “Stingrays.” According to a letter written by U.S. Senator Ron Wyden of Oregon to then-U.S. Attorney General ...

‘Texas Reneging on Deal’ With Draconian Sex Offender Registry, but Some Are Fighting Back

by Ed Lyon

During our nation’s formative years, Native Americans faced subjugation and betrayal by the U.S. government. They were torn away from their land and assigned tracts called reservations. Whenever a reservation became valuable because of mineral deposits or a new railroad route, the government would abrogate its ...

Investigation and Arrest of Mail Bomb Suspect Rips Cover Off Postal Surveillance

by Derek Gilna

The recent investigation and arrest of the suspect in the 2018 mail bomb incidents targeting Democratic and liberal figures have focused attention on a virtually unknown federal government surveillance program that has caught the attention of privacy experts.

The so-called “mail cover” program carried out by the ...

Louisiana Ends Jim Crow-era Law: Unanimous Jury Requirement Now in Constitution

by Virginia Griese

The new year brings an end to an archaic Jim Crow-era law in Louisiana that allowed split juries in criminal cases. Felony convictions or acquittals in the state now require unanimous jury decisions, thanks to voters in Louisiana approving constitutional Amendment 2.

Before the November 6, 2018 ...

Juror Bias Often Triggered by Severity of Crime Charged

by Ed Lyon

Duke University’s Institute of Brain Sciences recently partnered with the National Institutes of Health and National Science Foundation to study the effect of crime severity on jurors’ psyches prior to hearing evidence. The study’s full results were published in the October 29, 2018, issue of Nature Human ...

Campus Cops on Municipal Streets Raises Transparency and Accountability Concerns

by Virginia Griese

The use of private, gun-carrying university campus police is raising concerns about the accountability and transparency of these forces.

“No Justice/ No Peace/ No Private Police” was the chant that protesters used at the Maryland General Assembly in spring 2018 when Johns Hopkins University announced its support ...

Police Commit Significant Number of Sex Crimes, Which May Shock the General Public but Not Those Familiar with Law Enforcement

by Kevin Bliss

A paper by Bowling Green State University (“BGSU”) researchers titled “Police Integrity Lost: A Study of Law Enforcement Officers Arrested” attempts to document police crime across the country, but it is incomplete because of lack of reporting.

For example, the paper reveals that from 2005 to 2011 ...

Washington Governor Expects to Pardon About 3,500 for Single Misdemeanor Pot Convictions

by Betty Nelander

Washington Governor Jay Inslee aims to nip draconian marijuana incarceration in the bud — at least for those behind bars for possessing a small amount of it.

“We shouldn’t be punishing people for something that is no longer illegal in Washington state,” he tweeted. “It is ...

‘Innocent Man Almost Executed’ Freed After Decade on Death Row

by Betty Nelander

Clemente Aguirre-Jarquin of Altamante Springs, Florida, was recently exonerated and freed after spending 14 years in prison, including 10 on death row, for double murder.

“An innocent man was almost executed for a crime he did not commit,” said Josh Dubin, one of the lawyers representing ...

Illinois Law on Informants Designed to Avoid Wrongful Convictions

by Betty Nelander

Anew Illinois law aims to bring transparency to the use of jailhouse snitches, which are the main cause of wrongful convictions nationwide and the cause of at least 17 wrongful convictions in that state alone.

Dubbed the “nation’s strongest jailhouse informant bill,” Senate Bill 1830 requires ...

Why Defining a ‘Credible Witness’ in Criminal Trials Is a Slippery Slope

by Steve Horn

In the aftermath of her testimony before the U.S. Senate Judiciary Committee, Dr. Christine Blasey Ford was hailed by legal scholars, legal practitioners, and laypeople alike as a “credible witness.”

Blasey Ford, a psychology professor at Palo Alto University, testified at a hearing September 27 ...

Massachusetts Drug Lab Scandal: Thousands More Cases Likely Affected

by Kevin Bliss

The Commonwealth of Massachusetts has dismissed about 45,000 charges in more than 30,000 drug cases prosecuted in the state due to misconduct by chemists Sonja Farak of Amherst drug lab and Annie Dookhan of Hinton drug lab.

Both were found to be falsifying records. Farak ...

$225,000 Settlement by Detroit for Unjustified Shooting of Dogs in Drug Case

by Derek Gilna

The city of Detroit, Michigan, has settled a Section 1983 federal civil rights suit filed by Kenneth Savage and Ashley Franklin after police unnecessarily shot three dogs while confiscating potted marijuana plants from the owners’ enclosed yard.

The $225,000 settlement was the most recent payout by ...

Tracking the Prevalence of Police Crime

by David Reutter

“Americans actually have no idea” how often police use force, former FBI director James Comey said in 2016. They also have no inkling how often police officers commit a crime. The reason for that is the federal government does not track such activity.

The Department of Justice ...

Former Balch Springs, Texas, Officer Found Guilty of Murder of Black Teen

by Kevin Bliss

Former Balch Springs, Texas, police officer Roy Oliver was recently found guilty of murder and sentenced to 15 years in prison. The outcome of this case is notable not only because Oliver is a white officer who responded to a call with his partner in suburban Dallas ...

Race-Based Arrests Rampant in San Francisco

by Kevin Bliss

The U.S. Supreme Court made targeting by law enforcement of people based on race unconstitutional over 130 years ago, yet the practice still runs rampant in police departments nationwide, says Ezekiel Edwards, director of the ACLU Criminal Law Reform Project.

He said San Francisco has a ...

News in Brief

California: A detective assigned to handle child molestation cases in the Special Victims Bureau at the Los Angeles Sheriff’s Department was arrested on November 16, 2018, on charges of raping a 14-year-old girl, the latimes.com reports. Neil Kimball, a 20-year department veteran, was “booked on suspicion of rape by ...




 

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