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Criminal Legal News: April, 2019

Issue PDF
Volume 2, Number 4

In this issue:

  1. The FBI Says Its Photo Analysis Is Scientific Evidence. Scientists Disagree. (p 1)
  2. Appeals court provides new vehicle to challenge registration (p 10)
  3. Conversations With Those Helped by Passage of First Step Act: Provides Relief for Some Federal Prisoners, but More Is Needed (p 12)
  4. NYPD’s Controversial Use of Mugshot Database Searches (p 14)
  5. N.C. Supreme Court: Hiring and Paying a Hit Man Not Overt Act Necessary for Attempted Murder Charge (p 15)
  6. New Jersey Supreme Court: Detention of Motel Room Occupants After Reason for Police Visit Resolved Is Unlawful Seizure, Evidence Subject to Exclusionary Rule (p 16)
  7. California Police Privacy Laws Have Been Violating Brady for Years (p 16)
  8. Arkansas Supreme Court: Search of Wallet Exceeded Scope of Lawful ‘Terry’ Frisk for Weapons (p 19)
  9. Supreme Court of Alaska Announces Court System Bears Costs of Expert Evaluation When Insanity or Diminished Capacity Raised as Defense (p 20)
  10. Fourth Circuit Grants Habeas Relief for Death Row Prisoner Because Trial Court Excluded Expert Testimony Defendant Represents Low Risk of Violence in Prison (p 20)
  11. Ninth Circuit Holds Juror Who Wouldn’t Unequivocally State She Could Be Impartial Should Have Been Excused; New Trial Ordered Because Biased Juror Can’t Be Harmless Error (p 21)
  12. In Landmark Civil Asset Forfeiture Case, U.S. Supreme Court Holds Excessive Fines Clause of Eighth Amendment Applicable to States (p 22)
  13. Connecticut Supreme Court Announces Defense Counsel Has Duty to ‘Promptly’ Notify Defendant of Plea Offer, Failure to Notify Before Testifying Constitutes IAC (p 23)
  14. Seventh Circuit: Claim for Unlawful Pretrial Detention Accrues on Date of Release (p 24)
  15. Sixth Circuit Rejects Qualified Immunity Claim in Malicious Prosecution Suit for Wrongful Arrest and Conviction Involving Multiple Lies by Police (p 24)
  16. Fourth Circuit Rules 3 Marijuana Stems Discovered in Single Trash Pull Insufficient for Search Warrant, Suppresses Evidence Found in Residence (p 26)
  17. Counsel Ineffective for Failing to Move for Mistrial When Court Coerces Unanimous Verdict (p 26)
  18. North Dakota Supreme Court Announces Implied Consent Advisory Must be Read After Arrest and Before Administering Test (p 27)
  19. Nevada Supreme Court Clarifies, Narrows Nonhearsay Rule Under NRS 51.135(2) (p 28)
  20. First Circuit: Sentencing Courts May Consider New Career Offender Guideline Amendment 798, Even Though Not Retroactive (p 28)
  21. FBI Reviewing Four Incidents of Excessive Force at Mesa, Arizona, PD in Just Four Months (p 29)
  22. Law Enforcement and Lobbyists Battle Over Need for Civil Asset Forfeiture Reform (p 29)
  23. Video Simulators Part of Push to Train Police to Shoot Fewer Dogs, Limit Lawsuits (p 30)
  24. Erie County Convicted 11 People of Violating a Law Ruled Unconstitutional Over 20 Years Ago by Federal Court (p 30)
  25. Georgia Supreme Court Holds Statute Authorizing Lifetime GPS Monitoring of ‘Sexually Dangerous Predator’ Is Unconstitutional (p 31)
  26. Tennessee Supreme Court: Attempting to Secretly Videotape 
Teen Changing Clothes Does Not Support Conviction for Attempted Production of Child Pornography (p 32)
  27. Death Penalty Usage Trending Downward, Report Reveals (p 32)
  28. Oregon Supreme Court Clarifies PCR ‘Church Motion’ Practice (p 33)
  29. Kentucky Supreme Court Holds State Statute Defining Intellectual Disability as IQ of 70 or Lower Unconstitutional, Death Row Prisoner Entitled to Hearing (p 34)
  30. Georgia Supreme Court Announces Defendant May Invoke Rape Shield Statute to Bar State From Offering Evidence of Victim’s Past Sexual Behavior (p 34)
  31. Shooting of Seven-Year-Old Girl in Houston Highlights Problems With Eyewitness Identification (p 35)
  32. Eleventh Circuit Rules DEA’s Definition of Positional Isomer Does Not Apply to Substances on Temporary Schedule, Vacates Possession Conviction (p 36)
  33. $8.4 Million Combined Settlement Reached by ‘Norfolk Four’ (p 36)
  34. Indiana Supreme Court Announces Trial Court Must Resentence on All Underlying Felonies After Gang Enhancement Sentence Reversed on Appeal (p 37)
  35. Birth Pangs of Bail Reform Come to Texas (p 38)
  36. Wisconsin Considers Updating Its Cash Bail System (p 38)
  37. San Francisco Embraces New Technology to Clear Pot Convictions (p 39)
  38. Nebraska’s Death Row Prisoners Must Bring ‘Repeal Challenges’ Individually (p 39)
  39. Third Circuit: Pennsylvania’s SORNA Requirements Sufficiently Restrictive to Constitute Custody for Habeas Jurisdiction (p 40)
  40. Can Criminal Records Ever Truly Be Expunged in the Internet Era? (p 41)
  41. When Prosecuting Crimes by Police, Feds Appear to Move Slowly (p 41)
  42. News In Brief (p 42)

The FBI Says Its Photo Analysis Is Scientific Evidence. Scientists Disagree.

The bureau’s image unit has linked defendants to crime photographs for decades using unproven techniques and baseless statistics. Studies have begun to raise doubts about the unit’s methods.

by Ryan Gabrielson, ProPublica

At the FBI Laboratory in Quantico, Virginia, a team of about a half-dozen technicians analyzes pictures down to ...

Appeals court provides new vehicle to challenge registration

by Larry N., NARSOL

We are excited to report that registrants in Pennsylvania now will have a new vehicle to challenge sex offender registration. The United States Court of Appeals for the Third Circuit Court handed down a precedential decision on February 27th that has the potential to be significant ...

Conversations With Those Helped by Passage of First Step Act: Provides Relief for Some Federal Prisoners, but More Is Needed

by Chad Marks

December 21, 2018, changed the lives of many federal prisoners in facilities throughout the United States. That’s when President Trump signed the bipartisan First Step Act into law, making many federal prisoners eligible for release sooner than expected.

Trump invited two unlikely guests to his State of ...

NYPD’s Controversial Use of Mugshot Database Searches

by Matt Clarke 

The NYPD’s practice of using a crime victim or witness’ description of a perpetrator to generate a search of the department’s mugshot database, often generating hundreds of hits, has caused controversy and resulted in wrongful arrests. 

New York City resident St. Clair Steward, 43 ...

N.C. Supreme Court: Hiring and Paying a Hit Man Not Overt Act Necessary for Attempted Murder Charge

by Douglas Ankney

The Supreme Court of North Caro­lina ruled that hiring an undercover officer posing as a hit man to kill another person does not satisfy the element of committing “an overt act” toward completion of the offense of attempted murder.

On February 3, 2015, Darrell Lee ...

New Jersey Supreme Court: Detention of Motel Room Occupants After Reason for Police Visit Resolved Is Unlawful Seizure, Evidence Subject to Exclusionary Rule

by Richard Resch

The Supreme Court of New Jersey ruled that police detention of motel room occupants for warrant checks after a noise complaint had been resolved constituted an unlawful seizure, and all evidence obtained as a result of the unconstitutional search and seizure must be suppressed.

Neptune police officers ...

California Police Privacy Laws Have Been Violating Brady for Years

by Mark Wilson

An arresting officer’s fabrication or planting of evidence or other misconduct lies at the very heart of the definition of exculpatory evidence that must be disclosed to criminal defendants under the Sixth Amendment since the 1963 landmark decision in Brady v. Maryland, 373 U.S. 83 ...

Arkansas Supreme Court: Search of Wallet Exceeded Scope of Lawful ‘Terry’ Frisk for Weapons

by Douglas Ankney

The Supreme Court of Arkansas ruled that the search of a defendant’s wallet during a frisk for weapons pursuant to an investigatory detention constituted an unconstitutional search.

Corporal Kenneth Kennedy of the Clarksville Police Department discovered a parked car in a medium to high crime area of ...

Supreme Court of Alaska Announces Court System Bears Costs of Expert Evaluation When Insanity or Diminished Capacity Raised as Defense

by Chad Marks

The Supreme Court of Alaska held that a trial court was required under Alaska state law to appoint at least two qualified psychiatrists or forensic psychologists to examine defendants who rely on a defense of insanity or diminished capacity at trial. The Supreme Court in its decision ...

Fourth Circuit Grants Habeas Relief for Death Row Prisoner Because Trial Court Excluded Expert Testimony Defendant Represents Low Risk of Violence in Prison

by David Reutter

The U.S. Court of Appeals for the Fourth Circuit reversed the denial of habeas corpus relief to a death row prisoner. The Court held that where the jury’s only choices were life in prison without parole or death, the exclusion of expert testimony that the defendant ...

Ninth Circuit Holds Juror Who Wouldn’t Unequivocally State She Could Be Impartial Should Have Been Excused; New Trial Ordered Because Biased Juror Can’t Be Harmless Error

by Dale Chappell

In a case where a juror did not unequivocally state that she could be unbiased because she had previously been a victim in a similar crime, the U.S. Court of Appeals for the Ninth Circuit held that the juror should have been excused for actual bias ...

In Landmark Civil Asset Forfeiture Case, U.S. Supreme Court Holds Excessive Fines Clause of Eighth Amendment Applicable to States

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) held that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment, inclusive of civil in rem forfeiture cases.

After Tyson Timbs pleaded guilty in an Indiana ...

Connecticut Supreme Court Announces Defense Counsel Has Duty to ‘Promptly’ Notify Defendant of Plea Offer, Failure to Notify Before Testifying Constitutes IAC

by Matt Clarke

The Supreme Court of Connecticut held that a criminal defense attorney was ineffective for waiting to convey to his client a plea-bargain offer until after it had been withdrawn two and a half days later.

Jennifer Helmedach was charged with felony murder and related crimes. She faced ...

Seventh Circuit: Claim for Unlawful Pretrial Detention Accrues on Date of Release

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit has held that the accrual date for claims for arrest and detention without probable cause is the date the detention ends.

Maurice Lewis was confined in the Cook County Jail for over two years awaiting trial on ...

Sixth Circuit Rejects Qualified Immunity Claim in Malicious Prosecution Suit for Wrongful Arrest and Conviction Involving Multiple Lies by Police

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit upheld the denial of summary judgment filed by Detroit police in a lawsuit alleging malicious prosecution and false arrest, after police lied in order to obtain a conviction. The Court’s decision allows the lawsuit to move forward ...

Fourth Circuit Rules 3 Marijuana Stems Discovered in Single Trash Pull Insufficient for Search Warrant, Suppresses Evidence Found in Residence

by David Reutter

The U.S. Court of Appeals for the Fourth Circuit affirmed the suppression of evidence obtained while executing a search warrant based on the discovery of three marijuana stems in a trash pull.  Prince George Police found the phone number of Tyrone Lyles in the cellphone of ...

Counsel Ineffective for Failing to Move for Mistrial When Court Coerces Unanimous Verdict

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit held that a defendant did not receive effective assistance of counsel when his attorneys failed to object and move for a mistrial while two judges coerced a jury to return a unanimous verdict.

Sumnar Robert Brewster was ...

North Dakota Supreme Court Announces Implied Consent Advisory Must be Read After Arrest and Before Administering Test

by Douglas Ankney

In December 2018, the Supreme Court of North Dakota held that the implied consent advisory pursuant to N.D.C.C. § 39-20-01(2) and (3) must be read after placing an individual under arrest and before administering a chemical test to determine blood-alcohol content or ...

Nevada Supreme Court Clarifies, Narrows Nonhearsay Rule Under NRS 51.135(2)

by Dale Chappell

An out-of-court statement is not hearsay only if the person making the statement is subject to cross-examination concerning the statement, the Nevada Supreme Court instructed, clarifying and narrowing the application of when nonhearsay statements are admissible at trial.

After Kirsten Kinard identified Dvontae Richard as the man ...

First Circuit: Sentencing Courts May Consider New Career Offender Guideline Amendment 798, Even Though Not Retroactive

by Dale Chappell

In a case where a defendant was sentenced when the career offender guideline still contained the so-called residual clause, the U.S. Court of Appeals for the First Circuit held that a sentencing court has the discretion to ignore the career offender penalty in light of ...

FBI Reviewing Four Incidents of Excessive Force at Mesa, Arizona, PD in Just Four Months

by Dale Chappell

The FBI is reviewing four incidents of excessive force by Mesa, Arizona, police officers in the span of just four months, some after an “independent” investigation cleared the involved officers of any wrongdoing.

In one incident that occurred May 23, 2018, Mesa police were investigating a domestic ...

Law Enforcement and Lobbyists Battle Over Need for Civil Asset Forfeiture Reform

by Kevin Bliss

Texas used civil and criminal asset forfeiture to obtain more than $50 million in cash and property in 2017, according to the Texas Attorney General’s Office. Everything from cash and cars to clothing, art, and other property were seized and sold.

Prosecutors and police claim that asset ...

Video Simulators Part of Push to Train Police to Shoot Fewer Dogs, Limit Lawsuits

by Derek Gilna

Video simulators are now used by some police departments to train their officers in the use of non-lethal force. A 2005 decision by the U.S. Court of Appeals for the Ninth Circuit that dogs are property, whose killing constitutes an unreasonable seizure and a violation of ...

Erie County Convicted 11 People of Violating a Law Ruled Unconstitutional Over 20 Years Ago by Federal Court

by Kevin Bliss

Erie County, New York, wrongfully convicted 11 people under a law that was ruled unconstitutional over 20 years ago — yet is still listed in the state’s penal code and being enforced. 

District Attorney John J. Flynn stated that the county never received notification sent out ...

Georgia Supreme Court Holds Statute Authorizing Lifetime GPS Monitoring of ‘Sexually Dangerous Predator’ Is Unconstitutional

by Douglas Ankney

The Supreme Court of Georgia held that the state statute authorizing the lifetime global positioning system (“GPS”) monitoring of persons determined to be a “sexually dangerous person” (“SDP”) but who are no longer serving their sentences is unconstitutional on its face.

In 2003, Joseph Park was convicted ...

Tennessee Supreme Court: Attempting to Secretly Videotape 
Teen Changing Clothes Does Not Support Conviction for Attempted Production of Child Pornography

by Douglas Ankney

On January 7, 2019, the Supreme Court of Tennessee ruled that evidence of placing a camera in a teen’s bedroom with the intent of recording her in the nude while changing clothes is insufficient to support a conviction for attempted especially aggravated sexual exploitation of a minor ...

Death Penalty Usage Trending Downward, Report Reveals

by Betty Nelander

A look back at 2018 reveals death-penalty usage in the United States trending downward for the fourth consecutive year, according to a year-end report by the Death Penalty Information Center (“DPIC”). Executions numbered fewer than 30, and death sentences dropped below 50. 

Even Texas, the “capital ...

Oregon Supreme Court Clarifies PCR ‘Church Motion’ Practice

by Mark Wilson

The Supreme Court of Oregon clarified, and dramatically restricted, the so-called “Church motion” practice in post-conviction relief (“PCR”) cases. 

PCR is the exclusive collateral remedy for Oregon prisoners to challenge their convictions and sentences. Indigent PCR petitioners are entitled to the appointment of counsel.  ...

Kentucky Supreme Court Holds State Statute Defining Intellectual Disability as IQ of 70 or Lower Unconstitutional, Death Row Prisoner Entitled to Hearing

by Matt Clarke 

The Supreme Court of Kentucky held that a court erred when it denied a death-sentenced prisoner’s post-conviction motion alleging intellectual disability without a hearing based solely on the prisoner’s IQ exceeding 70. It held that prevailing medical standards should always take precedence in a court’s ...

Georgia Supreme Court Announces Defendant May Invoke Rape Shield Statute to Bar State From Offering Evidence of Victim’s Past Sexual Behavior

by Douglas Ankney

The Supreme Court of Georgia held that a defendant may invoke O.C.G.A. § 24-4-412 (“Rape Shield Statute”) to prohibit the State from offering evidence of a complaining witness’ past sexual behavior. In so doing, the Court overruled prior decisions of the Court of Appeals ...

Shooting of Seven-Year-Old Girl in Houston Highlights Problems With Eyewitness Identification

by Matt Clarke

The fatal shooting of a 7-year-old black girl who was riding in a car on a Houston highway, along with her mother and three sisters, is a tragedy that starkly illustrates the problems with eyewitness identification — unreliability. 

Jazmine Barnes was struck by one of many ...

Eleventh Circuit Rules DEA’s Definition of Positional Isomer Does Not Apply to Substances on Temporary Schedule, Vacates Possession Conviction

by Matt Clarke 

The U.S. Court of Appeals for the Eleventh Circuit held that neither the definition of “positional isomer” set forth in 21 C.F.R. § 1300.0l(b) nor the specific inclusion of ethylone as a positional isomer of the temporary-scheduled substance butylone on the ...

$8.4 Million Combined Settlement Reached by ‘Norfolk Four’

by Douglas Ankney

Four former Navy sailors (the “Norfolk Four”), who were wrongly convicted of the rape and murder of Michelle Bosko, agreed to a $4.9 million settlement with the City of Norfolk, Virginia. 

Governor Ralph Northam then signed legislation directing that the men receive an additional $3 ...

Indiana Supreme Court Announces Trial Court Must Resentence on All Underlying Felonies After Gang Enhancement Sentence Reversed on Appeal

by Derek Gilna

The Supreme Court of Indiana ruled that following the reversal of a gang enhancement sentence under Ind. Code § 35-50-2-15 the trial court on remand is required to resentence the defendant on all remaining underlying convictions.  

Marquell M. Jackson had been convicted of several criminal offenses ...

Birth Pangs of Bail Reform Come to Texas

by Ed Lyon 

For scores of years, excessive bail amounts for fiscally impoverished individuals accused of crimes have been a major factor in jail overcrowding. This, in turn, leads to violence and excessive additional costs to cities, counties, and parishes across the United States. 

Far exceeding its intended ...

Wisconsin Considers Updating Its Cash Bail System

by Kevin Bliss

Wisconsin’s constitution establishes that cash bail only be set as a means of ensuring defendants’ appearance at court hearings, but opponents say the system only ensures that the poor remain incarcerated while the rich enjoy freedom.

Defendants who cannot afford bail can remain behind bars for days ...

San Francisco Embraces New Technology to Clear Pot Convictions

Several pot-related crimes went up in smoke when California voters approved Proposition 64 marijuana reforms in 2016—and all retroactively.

However, a lack of resources in many district attorney offices to review decades’ worth of criminal cases eligible under the new law proved to be a roadblock until recently.  ...

Nebraska’s Death Row Prisoners Must Bring ‘Repeal Challenges’ Individually

by Douglas Ankney

The Supreme Court of Nebraska has dismissed on technical grounds a lawsuit filed by eight death-row prisoners represented by the American Civil Liberties Union (“ACLU”).  The suit alleged the death sentences of Nebraska’s death-row prisoners must be converted to life sentences because the Nebraska Legislature repealed ...

Third Circuit: Pennsylvania’s SORNA Requirements Sufficiently Restrictive to Constitute Custody for Habeas Jurisdiction

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit held that the registration and reporting requirements of Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) are sufficiently restrictive to constitute custody for the purposes of habeas corpus jurisdiction.

Jason Piasecki was convicted in the Court of ...

Can Criminal Records Ever Truly Be Expunged in the Internet Era?

by Matt Clarke 

Expunction of criminal records is a traditional method of protecting those falsely arrested, falsely convicted, or deemed deserving of a second chance after completing probation. But with the prevalence of mugshot sites and other Internet-based methods of disseminating public information, which are not subject to expunction ...

When Prosecuting Crimes by Police, Feds Appear to Move Slowly

by Ed Lyon 

In November 2013, Hickory, North Carolina, police Sergeant Robert George allegedly removed a woman driver from her auto and slammed her face-first onto the ground. She required corrective surgery. 

Charged by local prosecutors in 2014, the case then languished in an unadjudicated limbo. Four years ...

News In Brief

Arizona: Debate about press freedom was reignited after a 12-year-old girl on a bicycle was caught in a confrontation with an Arizona cop for doing her job. The young journalist was “chasing down” a story in Patagonia, Arizona, when town Marshal Joseph Patterson “threatened to throw her in juvenile jail ...




 

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