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Prisoner Education Guide

Criminal Legal News: March, 2019

Issue PDF
Volume 2, Number 3

In this issue:

  1. Government Snitches: Incentivized Witnesses Are the Leading Cause of Wrongful Convictions (p 1)
  2. From the Editor (p 11)
  3. New York Mass Bail Out Action Targets Bail System Manipulation (p 11)
  4. Cops Are At War Out There (p 12)
  5. U.S. Government Lab Withheld Groundbreaking Study for 5 Years That Can Help Defendants Question the Reliability of Certain DNA Evidence (p 14)
  6. Ninth Circuit Announces SCOTUS’ Rodriguez Opinion Requires Overturning ‘Reasonableness Standard’ Precedent in Traffic Stop Prolongation Cases (p 16)
  7. California Court of Appeal: Using Criminal Process to Collect Fines That Indigent Defendants Cannot Pay Is Unconstitutional (p 17)
  8. Seventh Circuit Reverses Denial of a Certificate of Innocence Needed as a Prerequisite for Damages for an Unjust Conviction and Imprisonment (p 18)
  9. Eighth Circuit Rules Search Warrant Based on Affidavit That Failed to Link Target to Criminal Activity Lacked Probable Cause, Not Saved by Good-Faith Exception (p 19)
  10. First Circuit Announces No Joint Participation Exception to Spousal Testimonial Privilege (p 20)
  11. Minnesota Supreme Court Holds Sentencing Guidelines 
at Time of Offense, Not Time of Sentencing, Controls for Purposes of Calculating Criminal History Score (p 20)
  12. Louisiana Supreme Court Vacates Conviction for Batson Violation (p 21)
  13. SCOTUS: Florida’s Robbery Statute Satisfies Physical Force Requirement of Armed Career Criminal Act (p 22)
  14. Idaho Supreme Court: Temporary and Isolated Crossing of the ‘Fog Line’ Not Enough to Support a Traffic Stop (p 22)
  15. Fifth Circuit Holds Special Conditions in PSR Appendix but Not Orally Pronounced by District Court Must Be Removed From Sentence Where Conflict With Written Judgment (p 23)
  16. Ninth Circuit Announces Expert Testimony on Battered Woman Syndrome Not Categorically Excludable, Relevant to Duress Defense (p 24)
  17. Third Circuit: Summons Is Not an Arrest for USSG Criminal History Calculation (p 25)
  18. Sixth Circuit Reverses 60-Month Upward Variance Sentence Based on News Article Provided to Parties by Court at Beginning of Sentencing Hearing (p 25)
  19. Texas Court of Criminal Appeals Clarifies Proper Evidentiary Standard and Type of Evidence for Informal Competency Hearing (p 26)
  20. Third Circuit Orders Habeas Relief Based on Trial Counsel’s Failure to Present or Even Investigate Mental Health and Juvenile Records in Pennsylvania Death Penalty Case (p 26)
  21. Oklahoma Supreme Court Announces Drug Court Dismissal of Charges After Successful Completion of Drug Program Entitles Defendant to Immediate Expungement (p 28)
  22. Fifth Circuit: Introduction of Deposition Video Without Making Good-Faith Effort to Secure Witnesses’ Presence at Trial Violates Confrontation Clause (p 28)
  23. Custodial Interrogation Must Cease When Suspect Unambiguously Invokes Right to Remain Silent, Says Fourth Circuit (p 29)
  24. SCOTUS Clarifies Scope of Generic Burglary Under the ACCA (p 30)
  25. Report: Wisconsin Crime Labs Face Multitude of Problems (p 30)
  26. Deputy U.S. Attorney General Rosenstein Defends Junk Science Forensics (p 31)
  27. Sixth Circuit Vacates a Witness Tampering Conviction, Principally on the Ground that the District Court Erroneously Instructed the Jury on the Intent Element of Witness Tampering (p 32)
  28. Bronx Prosecutors Trained to Manipulate System to Delay Trials (p 32)
  29. Sexual Assaults and Harassment by Members of Los Angeles County Sheriff’s Department Costing Taxpayers Millions (p 33)
  30. Nebraska Supreme Court Clarifies Applicable Standard for Mandatory Testing Under DNA Testing Act, Reverses District Court for Applying Wrong Standard (p 34)
  31. Hawaii Supreme Court Finally Complies with SCOTUS’ Apprendi Decision, Vacates Enhanced Sentence Based on Fact Determined by Judge, Not Jury (p 34)
  32. Police Use of ‘Undercover Friending’ Investigative Technique Unregulated (p 35)
  33. NY Election Websites Tell Parolees They Can’t Vote, Even Though They Can (p 35)
  34. Massachusetts Drug Lab Scandal: Thousands More Cases Likely Affected (p 36)
  35. Forensic Entomology Helps Nevada Murder Convictee Get Exonerated After 17 Years in Prison (p 36)
  36. ‘Ban the Box’ Movement Expands in New Direction (p 37)
  37. Facebook Tells Law Enforcement to Quit Using Phony Accounts (p 37)
  38. New California Laws Peel Back Secrecy Surrounding Police Discipline Amid Pushback (p 38)
  39. San Francisco DA Candidate Chesa Boudin Puts Criminal Justice Reform Front and Center (p 38)
  40. Agencies: Bite-mark Forensics Outdated Science (p 39)
  41. Algorithm-dictated Freedom? Vet California’s New Pretrial Risk Assessment Tool (p 39)
  42. Study: Racial Bias Inherent in the Jury Selection Process (p 40)
  43. $175,000 Settlement to Public Protester with Profanity-laced Sign Tased by Police Officer (p 40)
  44. NYPD Gang Database Lacks Transparency, Limits Due Process (p 41)
  45. Minnesota Sees Rising Tide of Payouts for Epidemic of Police Misconduct (p 41)
  46. News in Brief (p 42)
  47. Jurors Showing More and More Savvy Toward Trial Evidence (p 42)

Government Snitches: Incentivized Witnesses Are the Leading Cause of Wrongful Convictions

by Dale Chappell

Every year, innocent people go to prison, or even death row, because of government informants who lie to get a good deal in their own criminal case. The problem, studies show, is the fact that this horse-trading between the informants and the government is largely informal, unregulated ...

From the Editor

by Richard Resch

Welcome to Criminal Legal News (“CLN”). We’ve been publishing CLN now for a little over a year, and the response has been tremendous. The number of people who’ve subscribed and provided positive feedback have exceeded our most optimistic projections when we first launched CLN. It’s ...

New York Mass Bail Out Action Targets Bail System Manipulation

by Virginia Griese

Throughout October, more than 105 women and teens incarcerated at Rikers Island and juvenile facilities had their bail paid by hundreds of volunteers and walked to freedom. 

The Mass Bail Out Action (“MBOA”), organized by Robert F. Kennedy Human Rights and other grassroots groups, tried to post ...

Cops Are At War Out There

A culture of racism, paranoia, and authoritarianism permeates American police departments. Piecemeal reform won’t be enough.

by Brian Platt, Jacobin

On September 6, Dallas police officer Amber Guyger entered the apartment of her upstairs neighbor, Botham Shem Jean, removed her service weapon, and shot the twenty-six-year-old man, killing ...

U.S. Government Lab Withheld Groundbreaking Study for 5 Years That Can Help Defendants Question the Reliability of Certain DNA Evidence

by Steve Horn

A study that called into question the reliability of DNA as a piece of smoking-gun evidence due to its propensity to be easily transferred and detected by modern DNA-detection technology was big news. However, a U.S. government lab sat on the laboratory-based and peer-reviewed study results ...

Ninth Circuit Announces SCOTUS’ Rodriguez Opinion Requires Overturning ‘Reasonableness Standard’ Precedent in Traffic Stop Prolongation Cases

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit held that police unlawfully prolonged a traffic stop in violation of the Fourth Amendment by repeatedly demanding that a passenger identify himself, absent reasonable suspicion that he committed a criminal offense, and he refused to do so ...

California Court of Appeal: Using Criminal Process to Collect Fines That Indigent Defendants Cannot Pay Is Unconstitutional

by Douglas Ankney

On January 8, 2019, the Court of Appeal for the Second Appellate District of the state of California ruled that when the only reason a defendant cannot pay a fine and court fees is the defendant’s poverty, then using the criminal process to collect the fine and ...

Seventh Circuit Reverses Denial of a Certificate of Innocence Needed as a Prerequisite for Damages for an Unjust Conviction and Imprisonment

by Punch & Jurists

In Abu-Shawish, the Seventh Circuit addressed a little known and little used Federal proceeding that gives people who have been unjustly convicted and imprisoned for a Federal crime a damage remedy against the United States. Here, after the Court’s recitation of the colorful history of the ...

Eighth Circuit Rules Search Warrant Based on Affidavit That Failed to Link Target to Criminal Activity Lacked Probable Cause, Not Saved by Good-Faith Exception

by David Reutter

The U.S. Court of Appeals for the Eighth Circuit held that two state court warrants to place a GPS tracker on the vehicle of Juan Lopez-Zuniga lacked sufficient indicia of probable cause and could not be saved by the good-faith exception. The Court, however, found two ...

First Circuit Announces No Joint Participation Exception to Spousal Testimonial Privilege

by Matt Clarke

The U.S. Court of Appeals for the First Circuit declined to recognize a joint participation exception to the spousal testimonial privilege for married criminal co-conspirators. In deciding upon this issue of first impression in the circuit, the Court affirmed the district court’s determination that such an ...

Minnesota Supreme Court Holds Sentencing Guidelines 
at Time of Offense, Not Time of Sentencing, Controls for Purposes of Calculating Criminal History Score

by Matt Clarke 

On August 15, 2018, the Supreme Court of Minnesota held that the classification of a previous offense used to calculate a defendant’s criminal history under Minnesota Sentencing Guidelines 2.B.7.a is controlled by the offense definitions and sentencing policies in effect at the time ...

Louisiana Supreme Court Vacates Conviction for Batson Violation

by Christopher Zoukis

The Supreme Court of Louisiana affirmed a court of appeals determination that a trial court erred when it denied a Batson challenge to the State striking one of two black jurors from a criminal trial panel because the trial court rejected the State’s first reason for ...

SCOTUS: Florida’s Robbery Statute Satisfies Physical Force Requirement of Armed Career Criminal Act

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) held that the amount of force necessary to sustain a conviction for robbery in Florida satisfies the elements clause of 18 U.S.C. § 924(e)(2)(B)(i) (“ACCA”).

In July 2015, Miami Beach Police confronted Denard ...

Idaho Supreme Court: Temporary and Isolated Crossing of the ‘Fog Line’ Not Enough to Support a Traffic Stop

by Christopher Zoukis

The Supreme Court of Idaho ruled that a brief, single incident of crossing the outer line in a lane of travel (“fog line”) does not amount to a reasonable, articulable suspicion that the law was violated. The Court upheld a lower court’s order suppressing evidence found following ...

Fifth Circuit Holds Special Conditions in PSR Appendix but Not Orally Pronounced by District Court Must Be Removed From Sentence Where Conflict With Written Judgment

by David Reutter

The Fifth Circuit Court of Appeals held that where a defendant did not have an opportunity to object to special sentencing conditions because they were not announced at sentencing, it conducts an abuse of discretion review and any “unpronounced” special conditions must be stricken from the ...

Ninth Circuit Announces Expert Testimony on Battered Woman Syndrome Not Categorically Excludable, Relevant to Duress Defense

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit vacated Lashay Lopez’s three convictions on federal charges, ruling that the trial court committed prejudicial error in excluding expert testimony on Battered Woman Syndrome (“BWS”) in support of her duress defense.  

Lopez and Hector Karaca dated ...

Third Circuit: Summons Is Not an Arrest for USSG Criminal History Calculation

by Mark Wilson

The U.S. Court of Appeals for the Third Circuit held that the issuance of a summons to appear on a traffic stop is not an arrest for purposes of calculating criminal history under the United States Sentencing Guidelines (“USSG”). 

John Francis Ley pleaded guilty to ...

Sixth Circuit Reverses 60-Month Upward Variance Sentence Based on News Article Provided to Parties by Court at Beginning of Sentencing Hearing

by Matt Clarke 

The U.S. Court of Appeals for the Sixth Circuit held that an Ohio federal district court erred when it doubled a defendant’s cocaine-possession sentence from the recommended 60 months to 120 months based on an online news article on the increase in drug overdose deaths ...

Texas Court of Criminal Appeals Clarifies Proper Evidentiary Standard and Type of Evidence for Informal Competency Hearing

by Christopher Zoukis

The Court of Criminal Appeals of Texas reversed a trial court’s refusal to grant a criminal defendant a formal competency evaluation, finding that the trial court and court of appeals erred by improperly considering evidence and applying the incorrect evidentiary standard. Unfortunately for the potentially incompetent defendant ...

Third Circuit Orders Habeas Relief Based on Trial Counsel’s Failure to Present or Even Investigate Mental Health and Juvenile Records in Pennsylvania Death Penalty Case

by Matt Clarke 

On July 12, 2018, the U.S. Court of Appeals for the Third Circuit ordered that habeas relief be provisionally granted in the case of a Pennsylvania death row prisoner whose attorney failed to sufficiently investigate and present mitigation evidence regarding his abusive childhood and mental ...

Oklahoma Supreme Court Announces Drug Court Dismissal of Charges After Successful Completion of Drug Program Entitles Defendant to Immediate Expungement

by Douglas Ankney

On December 18, 2018, the Supreme Court of Oklahoma ruled that when a drug court dismisses charges after a defendant’s successful completion of a treatment program, then the defendant is entitled to have the record expunged.

In July 2009, a petitioner identified as “D.A.,” ...

Fifth Circuit: Introduction of Deposition Video Without Making Good-Faith Effort to Secure Witnesses’ Presence at Trial Violates Confrontation Clause

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ruled that the Sixth Amendment’s Confrontation Clause was violated when the Government introduced videotaped deposition testimony without making a good-faith effort, based on the facts of the case, to secure the witnesses’ presence at trial. As such ...

Custodial Interrogation Must Cease When Suspect Unambiguously Invokes Right to Remain Silent, Says Fourth Circuit

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit ruled that investigators failed to scrupulously honor defendant’s invocation of his right to remain silent by continuing to question him after announcing he “wasn’t going to say anything at all.” As a result, the Court ...

SCOTUS Clarifies Scope of Generic Burglary Under the ACCA

by Richard Resch

The Supreme Court of the United States held that state burglary statutes that criminalize the burglary of “vehicles designed or adapted for overnight use” are within the scope of the generic burglary definition under the Armed Career Criminal Act (“ACCA”). 

Victor Stitt and Jason Sims were ...

Report: Wisconsin Crime Labs Face Multitude of Problems

by Ed Lyon

Wisconsin has crime labs in Madison, Milwaukee, and Wausau. The Madison and Milwaukee labs are classified as full service because each is responsible for eight forensic-science fields, including DNA analysis. The Wausau lab covers only four forensic science fields. All three conduct Crime Scene Response (“CSR”) service ...

Deputy U.S. Attorney General Rosenstein Defends Junk Science Forensics

by Matt Clarke

Criminal Legal News and its sister publication, Prison Legal News, have long covered prosecutors’ use of questionable forensics and unscientific lab techniques to secure convictions [PLN Oct. 2010, p. l; Apr. 2015, p. l, and CLN Jan. 2018, p. l; July 2018, p. 36]. 

Reports ...

Sixth Circuit Vacates a Witness Tampering Conviction, Principally on the Ground that the District Court Erroneously Instructed the Jury on the Intent Element of Witness Tampering

By Punch & Jurists

In a rare reversal of a witness tampering conviction, the Sixth Circuit, in Lobbins, held that the district court had given an erroneous jury instruction that misstated an essential element of the witness-tampering charge and that trial counsel had been ineffective when he failed ...

Bronx Prosecutors Trained to Manipulate System to Delay Trials

by Matt Clarke

Recently revealed internal training documents from the Bronx District Attorney’s Office show that prosecutors are being trained in courtroom techniques designed to delay trial, undermining defendants’ speedy trial rights and extending the pretrial incarceration of those unable to afford bail. 

New York’s C.P.L ...

Sexual Assaults and Harassment by Members of Los Angeles County Sheriff’s Department Costing Taxpayers Millions

by Ed Lyon 

The Los Angeles County Sheriff’s Department (“LASD”) is the largest of its kind in the U.S. According to recent figures, it tops another list—it’s apparently the most feloniously libidinous as well.

Considering the cost of the resulting lawsuits and the price tag to defend against ...

Nebraska Supreme Court Clarifies Applicable Standard for Mandatory Testing Under DNA Testing Act, Reverses District Court for Applying Wrong Standard

by Chad Marks

The Supreme Court of Nebraska reversed a district court’s order denying prisoner James Myers’ request for DNA testing pursuant to the DNA Testing Act, Neb. Rev. Stat. §§ 29-4116 to 29-4125, related to evidence dating back to 1995.

Myers was charged with first-degree murder, use of a ...

Hawaii Supreme Court Finally Complies with SCOTUS’ Apprendi Decision, Vacates Enhanced Sentence Based on Fact Determined by Judge, Not Jury

by Christopher Zoukis

The Supreme Court of Hawaii, in ruling that a criminal defendant’s enhanced sentence violated the U.S. Constitution, has come on board with the U.S. Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The opinion by Hawaii’s high court put ...

Police Use of ‘Undercover Friending’ Investigative Technique Unregulated

by Kevin Bliss

The widespread use of social media to conduct unregulated, warrantless, long-term surveillance of individuals has become prevalent among the nation’s police departments. Officers have created Facebook accounts with false identities to follow targeted individuals without consideration for any clear investigative outcome.

Civil liberties groups question department policies ...

NY Election Websites Tell Parolees They Can’t Vote, Even Though They Can

by Dale Chappell

Months after New York Governor Andrew Cuomo granted voting rights to most of the state’s parolees, state election websites still say they cannot vote.

More than half the board of elections’ websites expressly state parolees in general cannot vote. In the list of disqualifications on the sites ...

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 ...

Forensic Entomology Helps Nevada Murder Convictee Get Exonerated After 17 Years in Prison

by Ed Lyon 

In June 2001, 18-year-old Kirstin Blaise Lobato narrowly escaped being raped in Las Vegas, Nevada. With her small pocket knife, she wounded her attacker’s genitals. He was left intact but did sustain enough of an injury to make him cry. 

On July 8, 2001 ...

‘Ban the Box’ Movement Expands in New Direction

by Ed Lyon 

For many people, the negative effects of being in jail or prison follow them throughout their lives after they re-enter society. Probably one of the most pervasive of these effects is obtaining employment they are qualified for in all aspects, save for their carceral ...

Facebook Tells Law Enforcement to Quit Using Phony Accounts

by Dale Chappell

Facebook recently told law enforcement to stop using fake accounts as a ruse to bust people on its service. The social media giant also shut down several law enforcement accounts that violated its policy against phony accounts.

The fake accounts came to light in a ...

New California Laws Peel Back Secrecy Surrounding Police Discipline Amid Pushback

by Betty Nelander

The tide is changing on police accountability and transparency in California with the passage and signing of the California Records Act (“SB-1421”) and Assembly Bill 748.

But SB-1421, which was scheduled to take effect January 1, 2019, has encountered pushback.

At least one community (Inglewood) has given ...

San Francisco DA Candidate Chesa Boudin Puts Criminal Justice Reform Front and Center

Chesa Boudin stands out among the candidates for the 2019 district attorney race in San Francisco. Boudin, a deputy public defender, helped to lead efforts to reform the cash bail system and has earned support from progressives.

He hopes to see San Francisco become a leader in fixing the nation’s ...

Agencies: Bite-mark Forensics Outdated Science

by Kevin Bliss

Critics contend that bite-mark evidence is an inconclusive forensic science and should be supported by other evidence when used in the prosecution of a defendant for any crime. To date, there have been 31 exonerations from re-examination of cases dependent on bite-mark comparison, according to forensicmag.com ...

Algorithm-dictated Freedom? Vet California’s New Pretrial Risk Assessment Tool

by Virginia Griese

An individual’s liberty may soon be in the hands of technology. 

Pretrial risk-assessment algorithms will replace the cash bail system in California, thanks to S.B. 10, the new bail reform law signed by Governor Jerry Brown effective in October 2019. 

Pretrial risk assessment assigns ...

Study: Racial Bias Inherent in the Jury Selection Process

by Kevin Bliss

Wake Forest University criminal law professor Ronald Wright recently published a research paper, which proves—with statewide evidence—that the peremptory challenge process of jury selection in North Carolina trials is racially biased. 

Prosecutors, who are first to use their peremptory challenges, remove about 20 percent of the ...

$175,000 Settlement to Public Protester with Profanity-laced Sign Tased by Police Officer

One of two men protesting police brutality while carrying a sign reading “Fuck Bad Cops” was tased by a police officer, after which he sued for violation of his First and Fourth Amendment rights. In December 2018, Joshua Condiotti-Wade was awarded a $175,000 settlement from Commerce City, Colorado, in ...

NYPD Gang Database Lacks Transparency, Limits Due Process

by Kevin Bliss

The New York Police Department (“NYPD”) expanded its gang database to include more than 42,000 New Yorkers during a time when gang-related activity is at an all-time low in the city. Placement is secretive with little-known criteria, yet repercussions for being listed are severe and far-reaching ...

Minnesota Sees Rising Tide of Payouts for Epidemic of Police Misconduct

by Derek Gilna

Although bigger cities and states have gotten most of the negative publicity regarding police misconduct, Minnesota and its biggest city, Minneapolis, are drawing unwanted national attention for over $60 million in payouts the past 11 years. Minneapolis’ share of that figure was almost $21 million, or 35 ...

News in Brief

Alaska: Three men, including now-retired Missoula, Montana, police officer Casey Richardson, were sentenced at an Anchorage court hearing in January 2019 for their roles in hunting-related crimes within the Wrangell Saint Elias National Park and Preserve in Alaska during 2014 and 2015, according to the Fairbanks Daily News-Miner. The ...

Jurors Showing More and More Savvy Toward Trial Evidence

by Ed Lyon 

For many decades, prosecutors have been the true kings of U.S. courtrooms. Longtime Dallas, Texas, prosecutor Henry Wade attained infamy for stating, “Guilty ones are easy to convict. It takes real effort to convict the innocent.”

His Houston, Texas, counterpart John Holmes gained a ...




 

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