Skip navigation
InmateMagazineService.com

Criminal Legal News: May, 2019

Issue PDF
Volume 2, Number 5

In this issue:

  1. Plea Bargaining: Prosecutors Leave Trail of Injustice When Playing Hardball with Defendants (p 1)
  2. Texas Misuses Privacy Law to Withhold In-Custody Death Information (p 11)
  3. Q&A: Ineffective Assistance of Counsel: Which Errors Are Worth Pursuing? (p 12)
  4. Misconduct in the Forensic Science Community Reveals Urgent Need for Greater Oversight (p 13)
  5. Expert Report Urges Changes to Forensic Analysis in Courtrooms (p 14)
  6. Arrests Do Not Necessarily Represent Solved Crimes (p 14)
  7. California Governor Announces Moratorium on Capital Punishment (p 15)
  8. SCOTUS: Presumption of Prejudice Recognized in Flores-Ortega Applies Regardless of Defendant’s Appeal Waiver (p 16)
  9. California Supreme Court: Competence Hearing Required When Formerly Incompetent Defendant Quits Taking Psychotropic Medication and Exhibits Signs of Incompetence (p 17)
  10. Fourth Circuit Announces Reasonably Foreseeable Acts of Co-Conspirators Not Sufficient for Fleeing Sentence Enhancement Under U.S.S.G. § 3C1.2 (p 18)
  11. First Circuit: Failure to Prove a Prior Conviction Was a ‘Controlled Substance Offense’ Under the Guidelines Requires Resentencing (p 18)
  12. Pennsylvania Supreme Court Retroactively Applies Birchfield, Holding that Enhanced Criminal Penalties for Refusing Warrantless Blood Tests are Unconstitutional (p 19)
  13. Georgia Supreme Court: Statutes Permitting a Defendant’s Refusal to Submit to Breath Tests to Be Admitted into Evidence Are Unconstitutional (p 20)
  14. Seventh Circuit: Failure to Disclose that Star Witness Was Hypnotized is 'Brady' Violation (p 20)
  15. Federal Judge Denies Qualified Immunity for Cops Who Detained Motorist for Giving Them the Finger (p 22)
  16. Fourth Circuit Reverses Dismissal of Habeas and Remands for Hearing on Actual Innocence Claim (p 22)
  17. Abolishing the Death Penalty Leads to Decline in Murders (p 23)
  18. Why Brady Lists Still Don’t Work (p 23)
  19. Facial Recognition Gives Police Easier Access to Cellphones (p 24)
  20. Second Circuit: Government’s Misleading Disclosure Warrants New Trial (p 24)
  21. Legal Aid Society Counters NYC Police Misconduct With New Database (p 27)
  22. Florida Cop Found Guilty of Killing Stranded Driver, a First in 30 Years in State (p 27)
  23. Fourth Circuit: South Carolina Conviction for Assaulting, Wounding, or Beating Officer While Resisting Arrest Is Not Predicate Violent Felony Conviction Under ACCA (p 28)
  24. Ninth Circuit Vacates a Sentence Imposed for Violation of Supervised Release Because the District Court Failed to Disclose to the Defendant the Probation Officer’s Confidential Sentencing Recommendations (p 28)
  25. Cops Seize Almost $150,000 from Black Musician for Not Using His Turn Signal (p 29)
  26. Prosecutors Have the Power to Stop Bad Roadside Drug Tests From Ruining People’s Lives (p 30)
  27. Former New Jersey Police Chief Faces Rare Federal Hate Crime Charges (p 30)
  28. Georgia Supreme Court Announces Statute Mandating Lifetime GPS Monitoring of ‘Sexually Dangerous Predator’ Even After Completion of Sentence Is Facially Unconstitutional (p 32)
  29. Fifth Circuit Rules Miscalculation of Guidelines Sentencing 
Range Plain Error That Merits Correction Even Though Not Raised by Defendant (p 32)
  30. Creation of Prosecutorial Watchdog in New York Spotlights Distinction Between Misconduct and Unfair Conduct (p 33)
  31. Fourth Circuit: Unreasonable Post-Seizure Delay in Obtaining Warrant Requires Suppression of Evidence (p 34)
  32. California Supreme Court Rules That Defense Counsel Can’t 
Agree to Stipulation That’s Tantamount to Guilty Plea Without Voluntary and Intelligent Waiver by Defendant (p 34)
  33. Pennsylvania Supreme Court Rules as a Matter of 1st Impression That Mother’s Use of Opioids During Pregnancy Not Child Abuse (p 35)
  34. Fourth Circuit: District Court Must Provide Rationale When Denying Motion for § 3582(c)(2) Sentence Reduction (p 36)
  35. D.C. Circuit Holds Attempted Drug Offenses Do Not Count Toward Career Criminal Designation (p 36)
  36. New Jersey Board Finds Suspending Drivers’ Licenses Because of Failure to Pay Court Fines Doesn’t Work (p 37)
  37. Fourth Circuit Holds 18 U.S.C. § 924(c)(3)(B) is Unconstitutional (p 38)
  38. In Washington State, a Man’s Home Is No Longer His Castle (p 38)
  39. Federal Judge Rules Massachusetts Law Banning Secretly Recording Police in Public Is Unconstitutional (p 39)
  40. L.A. County Wipes Out Almost $90 Million in Debt for Juvenile Detention Fees (p 39)
  41. Deadly Force Mindset as Justifiable Defense Questioned (p 40)
  42. Delaware Supreme Court: ‘The Sixth Amendment Demands More Than the Presence the Morning of Trial of a Warm Body With a Law Degree’ (p 40)
  43. Police Not Required to Protect; Are They Required to Serve? (p 41)
  44. News in Brief (p 42)
  45. Florida Deputy Falsifies Drug Field-Test Results, Freeing 11 From Jail (p 42)

Plea Bargaining: Prosecutors Leave Trail of Injustice When Playing Hardball with Defendants

by David Reutter

To fight against government tyranny in the criminal justice system, America’s Founding Fathers enshrined into the Constitution the “right to a speedy and public trial, by an impartial jury.” Plea bargains, however, have become, as the Supreme Court of the United States (“SCOTUS”) said, “not ...

Texas Misuses Privacy Law to Withhold In-Custody Death Information

by Ed Lyon

Chapter 552, § 108(a)(2) of the Texas Government Code (“TGC”) was passed by the state legislature in 1979. The law’s intended purpose was to protect the privacy rights of innocent and wrongfully convicted defendants who were accused of committing a crime but were either ...

Q&A: Ineffective Assistance of Counsel: Which Errors Are Worth Pursuing?

by Brandon Sample, Esq., and Dale Chappell

Question: I think my lawyer represented me poorly. How do I know if I have a claim of ineffective assistance of counsel?

Perhaps the most common question after a person’s conviction and sentence sinks in is whether their lawyer did all he ...

Misconduct in the Forensic Science Community Reveals Urgent Need for Greater Oversight

by Kevin Bliss

The U.S. has recently experienced a spate of convictions being overturned because of forensic science misconduct, according to Jessica S. Henry, associate professor, Department of Justice Studies, Montclair State University. It was not the science that was at issue but the “so-called experts” not doing their ...

Expert Report Urges Changes to Forensic Analysis in Courtrooms

by Dale Chappell

Instead of subjective personal experiences, a new report by experts urges prosecutors and forensic experts to rely more on hard data and statistics to back evidence in a criminal case. A defendant’s life might rely on it. Literally. 

“If you’re overstating or understating the value of ...

Arrests Do Not Necessarily Represent Solved Crimes

by Ed Lyon 

Statistics show that the United States of America incarcerates more of its citizens per capita than any other legal jurisdiction in the world. The entry into the incarceration nation begins with the simple arrest by a member of one of the 18,000 law enforcement agencies ...

California Governor Announces Moratorium on Capital Punishment

by Bill Barton 

Governor Gavin Newsom granted a temporary reprieve for the 737 prisoners on California death row as of March 13, 2019. 

“I think this would be a bold step,” said Michael D. Rushford, president of the Criminal Justice Legal Foundation, “and I think he’s got ...

SCOTUS: Presumption of Prejudice Recognized in Flores-Ortega Applies Regardless of Defendant’s Appeal Waiver

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) held that the presumption of prejudice recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), applies regardless of whether a defendant has signed an appeal waiver.

Gilberto Garza, Jr. signed two plea agreements. In the agreements, Idaho agreed ...

California Supreme Court: Competence Hearing Required When Formerly Incompetent Defendant Quits Taking Psychotropic Medication and Exhibits Signs of Incompetence

by David Reutter

The Supreme Court of California ruled that “when a formerly incompetent defendant has been restored to competence solely or primarily through administration of medication, evidence that the defendant is no longer taking his medication and is again exhibiting signs of incompetence” a “formal investigation before a trial ...

Fourth Circuit Announces Reasonably Foreseeable Acts of Co-Conspirators Not Sufficient for Fleeing Sentence Enhancement Under U.S.S.G. § 3C1.2

by David Reutter

The U.S. Court of Appeals for the Eighth Circuit ruled that to impose an offense level enhancement on grounds that the defendant “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer” ...

First Circuit: Failure to Prove a Prior Conviction Was a ‘Controlled Substance Offense’ Under the Guidelines Requires Resentencing

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit held that when the Government fails to prove a prior conviction was for a controlled substance as defined by U.S. Sentencing Guideline (“U.S.S.G.”) 4B1.2(b), the defendant is entitled to resentencing ...

Pennsylvania Supreme Court Retroactively Applies Birchfield, Holding that Enhanced Criminal Penalties for Refusing Warrantless Blood Tests are Unconstitutional

by Douglas Ankney

The Supreme Court of Pennsylvania retroactively applied Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), holding that Samuel Anthony Monarch’s enhanced penalties for refusing warrantless blood tests following his arrest for driving under the influence (“DUI”) were unconstitutional.

In July 2015, Monarch was suspected of DUI ...

Georgia Supreme Court: Statutes Permitting a Defendant’s Refusal to Submit to Breath Tests to Be Admitted into Evidence Are Unconstitutional

by Douglas Ankney

The Supreme Court of Georgia held that OCGA §§ 40-5-67.1(b) and 40-6-392(d), to the extent that they allow a defendant’s refusal to submit to a breath test to be admitted as evidence, violate Article I, Section I, Paragraph XVI (“Paragraph XVI”) of the Georgia ...

Seventh Circuit: Failure to Disclose that Star Witness Was Hypnotized is 'Brady' Violation

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit ruled that the State concealed materially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose that the prosecution’s only witness to identify the defendant was hypnotized before trial ...

Federal Judge Denies Qualified Immunity for Cops Who Detained Motorist for Giving Them the Finger

by Dale Chappell

Can police conduct a traffic stop simply because someone in the car gave them the finger? The U.S. District Court for the Western District of Virginia held that they cannot, allowing a lawsuit to move forward in just such a case. 

When Brian Clark and ...

Fourth Circuit Reverses Dismissal of Habeas and Remands for Hearing on Actual Innocence Claim

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit reversed the district court’s dismissal of Charles Ray Finch’s habeas petition and remanded for a hearing on the merits of Finch’s claim of actual innocence.

In 1976, a jury in Wilson, North Carolina, convicted Finch of first-degree ...

Abolishing the Death Penalty Leads to Decline in Murders

by Douglas Ankney

In a blow to those who cling to the idea that the death penalty deters murder, a study by the Abdorrahman Boroumand Center (“ABC”) demonstrates that when nations abolish the death penalty the rate of homicides decreases. 

To be included in the study, a nation had ...

Why Brady Lists Still Don’t Work

by Douglas Ankney

Lists of discredited police officers whom prosecutors refuse to call as witnesses are known as Brady lists. These lists could play an important role in ensuring the criminal justice system is fair by tracking and exposing police officers who lie or engage in unethical behavior.

Unfortunately, these ...

Facial Recognition Gives Police Easier Access to Cellphones

by Dale Chappell

Facial recognition might make a cellphone more secure than a simple password, but it also gives the police less work to do if they want to search that phone. 

By switching from a password to facial recognition or other biometric security gateway, people are unwittingly shifting ...

Second Circuit: Government’s Misleading Disclosure Warrants New Trial

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit ruled that the Government violated Rule 16 of the Federal Rules of Criminal Procedure when its misleading disclosure caused the defense to forego filing a motion to suppress the defendant’s statement. The Court vacated the district court’s ...

Legal Aid Society Counters NYC Police Misconduct With New Database

The Legal Aid Society New York City has a new tool in the fight against rogue cops — a browsable database of NYC federal civil rights lawsuit data called CAPstat (capstat.nyc).

The nonprofit organization released the information in early March 2019 – part of a national drive by civil ...

Florida Cop Found Guilty of Killing Stranded Driver, a First in 30 Years in State

In a history-making decision, jurors in West Palm Beach, Florida, found Nouman Raja guilty of manslaughter with a firearm and first-degree attempted murder—the first time in three decades a Florida cop has been convicted in a civilian’s death while on duty. The fired Palm Beach Gardens police officer faces a ...

Fourth Circuit: South Carolina Conviction for Assaulting, Wounding, or Beating Officer While Resisting Arrest Is Not Predicate Violent Felony Conviction Under ACCA

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a conviction for assaulting, beating, or wounding a law enforcement officer while resisting arrest (“ABWO”) in violation of South Carolina Code § 16-9-320(B) (“ABWO statute”) is not a predicate offense because it does not ...

Ninth Circuit Vacates a Sentence Imposed for Violation of Supervised Release Because the District Court Failed to Disclose to the Defendant the Probation Officer’s Confidential Sentencing Recommendations

In Gray, the Ninth Circuit held that Fed.R.Crim.P. 32 requires a sentencing court to disclose to a defendant all factual evidence on which it relies at sentencing, including “factual information underlying a probation officer’s confidential sentencing recommendation” - even in cases involving sentencing for revocation of supervised release ...

Cops Seize Almost $150,000 from Black Musician for Not Using His Turn Signal

by Dale Chappell

How much does a ticket for not using your turn signal “a full 100 feet” before making a lane change cost in Oklahoma County? Apparently, all the cash you have in your car, if you’re a wealthy black entertainer who is mistaken for a drug dealer ...

Prosecutors Have the Power to Stop Bad Roadside Drug Tests From Ruining People’s Lives

by Sagiv Galai, Paralegal, 

  ACLU Criminal Law Reform Project

Three years ago on New Year’s Eve, Dasha Fincher was arrested in Monroe County, Georgia, after the deputies performed an on-the-spot test of a bag of blue substance that they found in the car in which she was a ...

Former New Jersey Police Chief Faces Rare Federal Hate Crime Charges

U.S. district judge ruled in December 2018 that federal hate crime charges against a now-retired New Jersey police chief – the first of their kind in about decade – will not be dismissed, paving the way to trial. 

Frank Nucera Jr. is accused by federal prosecutors “of ...

Georgia Supreme Court Announces Statute Mandating Lifetime GPS Monitoring of ‘Sexually Dangerous Predator’ Even After Completion of Sentence Is Facially Unconstitutional

by Douglas Ankney

The Supreme Court of Georgia held 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.

In 2003, Joseph Park was convicted of numerous sexual offenses ...

Fifth Circuit Rules Miscalculation of Guidelines Sentencing 
Range Plain Error That Merits Correction Even Though Not Raised by Defendant

by Chad Marks 

The U.S. Court of Appeals for the Fifth Circuit ruled that a district court’s miscalculation of defendant’s sentencing guidelines range constitutes plain error necessitating resentencing, “even where the defendant fails to object or raise the argument in his opening brief on appeal.”

Christopher Douglas ...

Creation of Prosecutorial Watchdog in New York Spotlights Distinction Between Misconduct and Unfair Conduct

by Michael Berk

Thanks in no small part to the dedicated lobbying of people such as Jeffrey Deskovic — who spent 16 years locked up for a rape and murder he did not commit — the New York State Legislature created the country’s first independent commission to oversee state prosecutors ...

Fourth Circuit: Unreasonable Post-Seizure Delay in Obtaining Warrant Requires Suppression of Evidence

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a 31-day delay in obtaining a search warrant after seizing a defendant’s cellphone, without reasonable justification, violates the Fourth Amendment and requires suppression of the evidence obtained from the phone.

Samuel Pratt was suspected by ...

California Supreme Court Rules That Defense Counsel Can’t 
Agree to Stipulation That’s Tantamount to Guilty Plea Without Voluntary and Intelligent Waiver by Defendant

by Derek Gilna

The bedrock principle of criminal defense is to force the prosecution to prove its case against his client, but in the case of Randolph Farwell, his attorney agreed to a stipulation of facts that was tantamount to a guilty plea because it admitted each element of the ...

Pennsylvania Supreme Court Rules as a Matter of 1st Impression That Mother’s Use of Opioids During Pregnancy Not Child Abuse

by Chad Marks

On December 28, 2018, the Supreme Court of Pennsylvania ruled as a matter of first impression that a mother cannot be found to be a perpetrator of child abuse for using drugs while she was pregnant.

On January 27, 2017, A.A.R. (“Mother”) gave birth to ...

Fourth Circuit: District Court Must Provide Rationale When Denying Motion for § 3582(c)(2) Sentence Reduction

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit ruled that a district court must provide its rationale when denying a motion seeking a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). 

In this case, the Court consolidated the appeals of ...

D.C. Circuit Holds Attempted Drug Offenses Do Not Count Toward Career Criminal Designation

by Matt Clarke

The U.S. Court of Appeals for the D.C. Circuit held that prior convictions for attempted distribution of, and attempted possession with intent to distribute drugs, could not be used to render a criminal defendant a career offender under § 4Bl.l(a) of the U ...

New Jersey Board Finds Suspending Drivers’ Licenses Because of Failure to Pay Court Fines Doesn’t Work

by Dale Chappell

Reaching a conclusion that most people already knew, the New Jersey Judicial Commission issued a report finding that suspending someone’s driver’s license when they fail to pay a court fine does not work, and it makes it even harder to pay the fine.

The report faults the ...

Fourth Circuit Holds 18 U.S.C. § 924(c)(3)(B) is Unconstitutional

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit, sitting en banc, held that the definition of a “crime of violence” in 18 U.S.C. 924(c)(3)(B)—commonly referred to as the “residual clause”—is  unconstitutional for vagueness.

Joseph Decore Simms pointed a ...

In Washington State, a Man’s Home Is No Longer His Castle

by Ed Lyon 

Most Americans are familiar with the Fourth Amendment of the U.S. Constitution, which guarantees them security in their persons and homes from unreasonable searches and seizures.

Perhaps this is where the axiom that a man’s home is his castle originated, or maybe it was the ...

Federal Judge Rules Massachusetts Law Banning Secretly Recording Police in Public Is Unconstitutional

by Dale Chappell

The U.S. District Court for the District of Massachusetts ruled that secretly recording the police in public is protected by the First Amendment and that a Massachusetts law forbidding such activity is unconstitutional. 

When Boston police arrested Simon Glik for filming the police while they ...

L.A. County Wipes Out Almost $90 Million in Debt for Juvenile Detention Fees

by Dale Chappell

It has been illegal for Los Angeles County to charge juveniles and their families the cost of their incarceration since 2009. But, until recently, the county kept trying to collect nearly $90 million from 52,000 accounts that still owed the $24.00 per day charge for ...

Deadly Force Mindset as Justifiable Defense Questioned

by Kevin Bliss

The science of neurobiology and neuropsychology used to defend officers in shooting incidents has been described as arbitrary at best. Many experts contend there simply is not enough peer-reviewed material to substantiate it as an exculpatory defense.

Federal judges are to use the Daubert Standard to determine ...

Delaware Supreme Court: ‘The Sixth Amendment Demands More Than the Presence the Morning of Trial of a Warm Body With a Law Degree’

by Douglas Ankney

The Supreme Court of Delaware ruled that an attorney’s limited pretrial contact deprived a defendant of effective assistance of counsel.

Everett Urquhart was charged with numerous felonies, including first-degree robbery. A witness saw the vehicle that had been loaned to Urquhart fleeing the area at the time ...

Police Not Required to Protect; Are They Required to Serve?

by Matt Clarke

At a recent hearing, former Broward County, Florida, Sheriff’s Deputy Scot Peterson claimed that he had no legal duty to protect the children inside the Parkland high school he was assigned to while Nikolas Cruz committed mass murder. 

Broward County Circuit Judge Patti Englander Henning disagreed ...

News in Brief

California: Thanks to the state’s new police accountability law, Californians know more about police misconduct. For example, public records show former Fairfield Police Officer Joe Griego had a history of harassment complaints by women at Paradise Valley Golf Course, where they dubbed him “creepy Joe.” According to mercurynews.com ...

Florida Deputy Falsifies Drug Field-Test Results, Freeing 11 From Jail

by Ed Lyon 

Steven O’Leary was a preacher before switching his career to law enforcement. The career-changing, job-hopping cop held jobs at two different departments before being hired as a deputy with Florida’s Martin County Sheriff Department (“MCSD”) in February 2018. O’Leary’s record with his prior departments was ...




 

Advertise here

 

InmateMagazineService.com

 

Federal Prison Handbook