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Criminal Legal News: June, 2019

Issue PDF
Volume 2, Number 6

In this issue:

  1. Prosecutors Dropping Child Porn Charges After Software Tools Are Questioned (p 1)
  2. Flipping the Bird, Even Toward a Cop, Is a Constitutionally Protected Right (p 7)
  3. Habeas Hints: Discovery on Habeas Corpus (p 8)
  4. Connecticut Supreme Court Rejects Davis and Announces State Constitution Requires Police to Clarify Ambiguous Request for Counsel Before Continuing Interrogation (p 10)
  5. Nebraska’s Beatrice Six Will Collect $28.1 Million Jury Award (p 11)
  6. Misconduct by prosecutors is rampant — how do we deter it? (p 12)
  7. Suspected Mishandling of DNA Tests Puts Cases on Hold in Fort Worth, Texas (p 14)
  8. Fourth Circuit Rules District Court Must Provide Individualized Rationale When Denying Motion for Sentence Reduction (p 14)
  9. Illinois Supreme Court: Warrantless Dog Sniff of Apartment Front Door in Locked Building Violates Fourth Amendment (p 15)
  10. First Circuit: FBI’s Ruse Claiming National Emergency to Obtain Consent to Search Held Unlawful (p 15)
  11. Third Circuit: Reason for Continuance Must be Given to Exclude Delay from 70-Day Limit of Speedy Trial Act or Dismissal of Indictment (p 16)
  12. Portion of Illinois Sex Offender Law is Unconstitutional (p 17)
  13. The Holloway Doctrine and First Step Act: Federal Judge Issues Order Urging Government to Dismiss One of Two 18 U.S.C. §924(c) Stacking Convictions (p 18)
  14. Georgia Supreme Court Says Visually Impaired Defendant Entitled to Appointment of a Reader (p 19)
  15. Fourth Circuit: 9-Year Increase in Guidelines Range Due to Misclassification as Career Offender Warrants § 2241 Petition to Be Heard on Merits When § 2255 Relief Unavailable (p 20)
  16. Unreasonable Delay in Obtaining Search Warrant after Lawful Seizure Requires Suppression of Evidence, Announces Georgia Supreme Court (p 20)
  17. When Prosecuting Crimes by Police, Feds Appear to Move Slowly (p 21)
  18. Pennsylvania District Court Explores the Growing Conflict Between Federal Laws, Which Still Prohibit the Use of Any Amounts of Marijuana, and State Laws, Which Increasingly Authorize the Use of Medical Marijuana and Decriminalize the Use of Small Amounts (p 22)
  19. Second Circuit Rules 68-Month Delay Violates Speedy Trial Clause (p 23)
  20. Knowing Sexual Offense Facts Important; Paying Attention to Them Critical (p 23)
  21. Eighth Circuit Vacates Supervised Release Conditions Prohibiting Alcohol Consumption and Setting Curfew Not Contained in Plea Agreement (p 25)
  22. First Circuit Vacates Revocation Sentence for Improperly Considering Rehabilitation (p 26)
  23. NJ Supreme Court: Failure to Advise Suspect of Pending Charges Before Waiver of Right Against Self-Incrimination Requires Suppression of Statements (p 26)
  24. Sixth Circuit Rejects Kentucky Supreme Court’s Ruling That Defendant-Lawyers Are Never Without Counsel and Not Entitled to Faretta Hearing (p 27)
  25. Supreme Court of Delaware: Lawyer’s Mere Presence the Day of Trial Violates Sixth Amendment Under Cronic Standard (p 28)
  26. Appointed Defense Lawyers, Public Defenders: Overworked, Underpaid, Ineffective (p 28)
  27. Intoxicated Driving Convictions for Non-Drinking Drivers (p 30)
  28. Oregon Supreme Court: State Prohibited From Introducing Breath Test Refusal as Evidence of DUI (p 30)
  29. Sixth Circuit Holds IAC When Counsel Fails to Warn of Possibility of Deportation as Result of Plea Bargain (p 31)
  30. DEA Used Decades of Warrantless Phone Data in Building Parallel Construction Cases (p 32)
  31. Eighth Circuit: Misprision of Felony Conviction of Participant in Underlying Felony Violates Fifth Amendment (p 33)
  32. Kansas Supreme Court Overturns Sentence for Vindictiveness (p 34)
  33. McDNA: The DNA Testing Equivalent to Fast Food (p 34)
  34. Ninth Circuit: Washington State Accomplice Liability Drug Offenses Not ACCA Predicates (p 34)
  35. Dallas County Judge’s ‘Blank Check’ Warrant Questioned; Case Dismissed (p 35)
  36. Don’t Shoot the Dogs: The Growing Epidemic of Cops Shooting Family Dogs (p 36)
  37. Pennsylvania Governor Signs Into Law New Bills to Help Convicts, Extends Postconviction Filing Time Limits (p 37)
  38. Ninth Circuit: Habeas Petitioner Need Only Show That IAC Claims Are Substantial to Excuse Procedural Default Under Martinez (p 37)
  39. New York Court of Appeals: Jury Trial Right Attaches to Deportable Crimes Punishable by Less Than Six Months in Jail (p 38)
  40. Prosecutors Regret Man’s Wrongful Conviction in 1983 Florida Rape and Murder (p 39)
  41. If You’re Unlucky or Black, Your Prison Sentence Could Be 63 Percent Longer (p 39)
  42. Tennessee Legislature’s Investigation Finds Inadequate Supervision of Private Probation (p 40)
  43. The Many Pitfalls Associated With Police Lineups (p 40)
  44. Illinois Data Collection Law Set to Expire; Collected Data Reveal Police Target Black and Latino Drivers (p 41)
  45. Criticizing Cops is a Criminal Act in Many States (p 41)
  46. Using Technology to Erase Old Pot Convictions is the Buzz in Los Angeles (p 41)
  47. News in Brief (p 42)

Prosecutors Dropping Child Porn Charges After Software Tools Are Questioned

More than a dozen cases were dismissed after defense attorneys asked to examine, or raised doubts about, computer programs that track illegal images to internet addresses.

by Jack Gillum, ProPublica

Using specialized software, investigators traced explicit child pornography to Todd Hartman’s internet address. A dozen police officers raided his Los Angeles-area apartment, seized his computer and arrested him for files including a video of a man ejaculating on a 7-year-old girl. But after his lawyer contended that the software tool inappropriately accessed Hartman’s private files, and asked to examine how it worked, prosecutors dismissed the case.

Near Phoenix, police with a similar detection program tracked underage porn photos, including a 4-year-old with her legs spread, to Tom Tolworthy’s home computer. He was indicted in state court on 10 counts of committing a “dangerous crime against children,” each of which carried a decade in prison if convicted. Yet when investigators checked Tolworthy’s hard drive, the images weren’t there. Even though investigators said different offensive files surfaced on another computer that he owned, the case was tossed.

At a time when at least half a million laptops, tablets, phones and other devices are viewing or sharing child pornography on the internet ...

Flipping the Bird, Even Toward a Cop, Is a Constitutionally Protected Right

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit affirmed that raising one’s middle finger without the four other fingers showing is an expression protected by the First Amendment.

In doing so, the Court also affirmed the district court’s denial of Officer Matthew Wayne Minard’s plea ...

Habeas Hints: Discovery on Habeas Corpus

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 ...

Connecticut Supreme Court Rejects Davis and Announces State Constitution Requires Police to Clarify Ambiguous Request for Counsel Before Continuing Interrogation

by Douglas Ankney

The Supreme Court of Connecticut held that the state constitution requires police to clarify an ambiguous request for counsel before continuing to interrogate a suspect.

In 2013, Robert John Purcell was arrested on multiple counts of sexual assault and risk of injury to a child. After Purcell ...

Nebraska’s Beatrice Six Will Collect $28.1 Million Jury Award

by Ed Lyon 

Popular country music singer Charlie Daniels’ first hit was a song called The Ballad of the Uneasy Rider. The singer-narrator told a story about a hippy who barely escapes a redneck bar and was so spooked he “drove to L.A. by way of Omaha.” ...

Misconduct by prosecutors is rampant — how do we deter it?

by Mike Fawer, The Lens, Opinion

https://thelensnola.org/2019/04/11/misconduct-by-prosecutors-is-rampant-how-do-we-deter-it/

I have been involved in the criminal justice system for almost 60 years, initially as a federal prosecutor, but for the greater portion of my career as a criminal defense attorney in both federal and ...

Suspected Mishandling of DNA Tests Puts Cases on Hold in Fort Worth, Texas

by Michael Berk

The Tarrant County District Attorney’s Office has put 117 criminal cases on hold in response to suspected misconduct involving DNA testing by a Fort Worth forensic scientist.

On February 27, 2019, Amanda Schaffner’s supervisor at the crime lab noticed that there was no digital record of a ...

Fourth Circuit Rules District Court Must Provide Individualized Rationale When Denying Motion for 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 Paulette ...

Illinois Supreme Court: Warrantless Dog Sniff of Apartment Front Door in Locked Building Violates Fourth Amendment

by David Reutter

Physically intruding on the cutilage of an apartment to conduct a dog sniff of the threshold is a violation of the Fourth Amendment, the Illinois Supreme Court held. The court’s holding expanded its precedent to include an unlocked apartment building.

Acting on a tip, East Molina ...

First Circuit: FBI’s Ruse Claiming National Emergency to Obtain Consent to Search Held Unlawful

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit held that a search wherein FBI agents lied about an emergency in order to gain consent to search a suspect’s computers violates the Fourth Amendment.

On October 23, 2013, ten FBI agents arrived at the home shared ...

Third Circuit: Reason for Continuance Must be Given to Exclude Delay from 70-Day Limit of Speedy Trial Act or Dismissal of Indictment

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit ruled that a district court must state the factual basis for a continuance or use language that invokes a particular provision of the Speedy Trial Act (“Act”) in order to exclude the delay from the 70-day time ...

Portion of Illinois Sex Offender Law is Unconstitutional

by Douglas Ankney

U.S. District Judge Virginia Kendall of Chicago ruled that it is unconstitutional for Illinois to hold sex offenders in prison after their release date when they are so poor they cannot find a home placement that complies with state requirements. 

Many sex offenders in Illinois ...

The Holloway Doctrine and First Step Act: Federal Judge Issues Order Urging Government to Dismiss One of Two 18 U.S.C. §924(c) Stacking Convictions

by Chad Marks

February 4, 2003, forever changed my life. That’s when, at the age of 24, the federal government charged me with numerous federal offenses related to my involvement in a crack-cocaine conspiracy case.

Specifically, the Government charged me with conspiracy to distribute 50 grams or more of cocaine ...

Georgia Supreme Court Says Visually Impaired Defendant Entitled to Appointment of a Reader

by Douglas Ankney

The Supreme Court of Georgia held that due process requires the appointment of a person to read questions submitted by a visually impaired defendant.

Richard Bishop was 76 years old when he shot and killed his girlfriend and injured her other boyfriend in August 2009. Just ...

Fourth Circuit: 9-Year Increase in Guidelines Range Due to Misclassification as Career Offender Warrants § 2241 Petition to Be Heard on Merits When § 2255 Relief Unavailable

by David Reutter

The U.S. Court of Appeals for the Fourth Circuit ruled that where an erroneous career offender designation raises a defendant’s mandatory prison term, the resulting sentence is fundamentally defective. 

The Court further ruled that when a 28 U.S.C. § 2255 petition is inadequate ...

Unreasonable Delay in Obtaining Search Warrant after Lawful Seizure Requires Suppression of Evidence, Announces Georgia Supreme Court

by Douglas Ankney

In a case of first impression for the Supreme Court of Georgia, it held that an unreasonable delay in obtaining a search warrant after items were lawfully seized requires suppression of the evidence.

In December 2015, police seized from Jennifer and Joseph Rosenbaum their iPhones, iPad, and ...

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 ...

Pennsylvania District Court Explores the Growing Conflict Between Federal Laws, Which Still Prohibit the Use of Any Amounts of Marijuana, and State Laws, Which Increasingly Authorize the Use of Medical Marijuana and Decriminalize the Use of Small Amounts

by Punch & Jurists

In Bey, District Judge Mark Kearney of the E.D.Pa., presented a timely review of a the growing reluctance of many Federal judges to a hardline approach in the rapidly escalating conflict between state laws (many of which authorize the use of medical marijuana) and ...

Second Circuit Rules 68-Month Delay Violates Speedy Trial Clause

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit held that a delay of 68 months between arrest and trial violates the right to a speedy trial enshrined in the Sixth Amendment when most of the delay is attributable to the Government.

On March 6, 2012 ...

Knowing Sexual Offense Facts Important; Paying Attention to Them Critical

by Sandy Rozek

The Arkansas legislature recently passed a law imposing various restrictions on those who are on a sexual offense registry in regard to Halloween. The primary provisions make it a crime for anyone on the registry to give out candy at Halloween or to wear masks or costumes ...

Eighth Circuit Vacates Supervised Release Conditions Prohibiting Alcohol Consumption and Setting Curfew Not Contained in Plea Agreement

by Matt Clarke

The U.S. Court of Appeals for the Eighth Circuit reversed and vacated a federal prisoner’s special conditions of supervised release prohibiting the consumption of alcohol and setting a curfew.

Under a binding plea agreement, David Bell pleaded guilty to conspiracy to distribute marijuana and conspiracy to ...

First Circuit Vacates Revocation Sentence for Improperly Considering Rehabilitation

by Anthony Accurso

The U.S. Court of Appeals for the First Circuit vacated and remanded the revocation sentence of Adrián Vázquez-Méndez because the sentencing judge likely extended the sentence for the purposes of rehabilitation. 

In 2001, Vázquez-Méndez pleaded guilty in a federal district court in Puerto Rico to ...

NJ Supreme Court: Failure to Advise Suspect of Pending Charges Before Waiver of Right Against Self-Incrimination Requires Suppression of Statements

by Douglas Ankney

The Supreme Court of New Jersey ruled that when police obtain a suspect’s waiver of his right not to incriminate himself before informing the suspect of “the essence of the charges filed against him,” the State cannot prove beyond a reasonable doubt that the suspect knowingly ...

Sixth Circuit Rejects Kentucky Supreme Court’s Ruling That Defendant-Lawyers Are Never Without Counsel and Not Entitled to Faretta Hearing

by Dale Chappell

An experienced Kentucky trial attorney who found himself on the wrong end of counsel’s table was granted a new trial by the U.S. Court of Appeals for the Sixth Circuit after the Kentucky Supreme Court ruled that he wasn’t entitled to the assistance of counsel ...

Supreme Court of Delaware: Lawyer’s Mere Presence the Day of Trial Violates Sixth Amendment Under Cronic Standard

by Chad Marks

The Supreme Court of Delaware held that a defendant’s Sixth Amendment right to assistance of counsel was violated by trial counsel’s near-total absence during the pretrial stage of proceedings.

Everett Urquhart found himself on the wrong side of the law when he was arrested for the ...

Appointed Defense Lawyers, Public Defenders: Overworked, Underpaid, Ineffective

by Ed Lyon 

The Sixth Amendment to the U.S. Constitution requires that all criminal defendants have a lawyer’s assistance to prepare and present a defense against whatever crime a prosecutor is accusing him or her of committing, as a matter of right. If a defendant cannot afford to ...

Intoxicated Driving Convictions for Non-Drinking Drivers

by Ed Lyon

The human body is an incredible machine. It heals itself from many injuries and illnesses. It turns food into calories that help build muscles and store fat for lean times. In some cases, a person’s body may even metabolize certain yeasts, sugars, and carbohydrates into alcohol, actual ...

Oregon Supreme Court: State Prohibited From Introducing Breath Test Refusal as Evidence of DUI

by Mark Wilson

The Supreme Court of Oregon held that the Oregon Constitution prohibits prosecutors from using a criminal defendant’s refusal to submit to a breath test as evidence against him in a prosecution for driving under the influence of intoxicants (“DUI”). 

Under Oregon’s Implied Consent law, an individual ...

Sixth Circuit Holds IAC When Counsel Fails to Warn of Possibility of Deportation as Result of Plea Bargain

by Dale Chappell

In a case where defense counsel, the Government, and the court all dropped the ball and led a 28 U.S.C. § 2255 movant to believe he did not face the possibility of deportation, his guilty plea based on that advice is invalid, the U.S ...

DEA Used Decades of Warrantless Phone Data in Building Parallel Construction Cases

by Steve Horn

After a years-long federal court dispute, the Electronic Frontier Foundation (“EFF”) and Electronic Privacy Information Center (“EPIC”) won a Freedom of Information Act (“FOIA”) lawsuit, which forced the U.S. Drug Enforcement Administration (“DEA”) to fork over hundreds of pages of records revealing the machinations of the ...

Eighth Circuit: Misprision of Felony Conviction of Participant in Underlying Felony Violates Fifth Amendment

by Douglas Ankney

The U.S. Court of Appeals for the Eighth Circuit ruled that a defendant’s misprision of felony conviction for failing to report a felony in which the defendant was herself involved violates the Fifth Amendment privilege against self-incrimination.

Elsa Solis was convicted of conspiring to possess with ...

Kansas Supreme Court Overturns Sentence for Vindictiveness

by Anthony Accurso

The Supreme Court of Kansas overturned a decision of the Court of Appeals and vacated the defendant’s sentence because the district court’s only reason for lengthening his sentence on remand was defendant’s successful appeal. 

Wyatt G. Brown pleaded no contest to one count of aggravated sodomy ...

McDNA: The DNA Testing Equivalent to Fast Food

by Ed Lyon 

In the late 1960s, Dr. Leonard McCoy of the science fiction television series Star Trek could wave a small device over a patient to find out all he needed to know about them. A similar device now exists in this 21st-century science reality world that ...

Ninth Circuit: Washington State Accomplice Liability Drug Offenses Not ACCA Predicates

by Mark Wilson

The U.S. Court of Appeals for the Ninth Circuit held that Washington state’s accomplice liability statute renders the state’s drug trafficking law too broad to serve as an Armed Career Criminal Act (“ACCA”) predicate offense. 

The ACCA requires a 15-year mandatory minimum sentence for individuals ...

Dallas County Judge’s ‘Blank Check’ Warrant Questioned; Case Dismissed

by Dale Chappell 

A Dallas County, Texas, judge who cops said would sign a blank warrant allowing them to do whatever they wanted was called into question by the District Attorney’s Office, which chose to drop the issue. But not before at least one case was dismissed because of ...

Don’t Shoot the Dogs: The Growing Epidemic of Cops Shooting Family Dogs

by John W. Whitehead, Commentary, The Rutherford Institute

In too much of policing today, officer safety has become the highest priority. It trumps the rights and safety of suspects. It trumps the rights and safety of bystanders. It’s so important, in fact, that an officer’s subjective fear of a ...

Pennsylvania Governor Signs Into Law New Bills to Help Convicts, Extends Postconviction Filing Time Limits

Pennsylvania Governor Tom Wolf signed into law in October 2018 three new provisions that will help convicts. Calling it “commonsense legislation,” Wolf said he intended to promote “smart sentencing reform” by approving the bipartisan bills.

The first law eliminates driver’s license suspensions for non-driving infractions. Part of a failed ...

Ninth Circuit: Habeas Petitioner Need Only Show That IAC Claims Are Substantial to Excuse Procedural Default Under Martinez

by Chad Marks

The U.S. Court of Appeals for the Ninth Circuit issued an order remanding a habeas case so that the district court could conduct an analysis of the substantiality of petitioner’s ineffective assistance of counsel (“IAC”) claims.

Kyle J. Rodney petitioned a district court in Nevada for ...

New York Court of Appeals: Jury Trial Right Attaches to Deportable Crimes Punishable by Less Than Six Months in Jail

by David Reutter

As a matter of first impression, the Court of Appeals of New York ruled that a noncitizen defendant charged with state crimes that carry a maximum penalty of less than six months in jail but subject him or her to deportation is entitled to a jury trial ...

Prosecutors Regret Man’s Wrongful Conviction in 1983 Florida Rape and Murder

The U.S. has seen a rise in exonerations in recent years. The National Registry of Exonerations (law.umich.edu) reports at least 139 exonerations in 2017, 166 in 2016 and 149 in 2015.

But wrongfully convicted Ronald Stewart did not live to see his record set straight: A court ...

If You’re Unlucky or Black, Your Prison Sentence Could Be 63 Percent Longer

by Douglas Ankney

A new report from the U.S. Sentencing Commission reveals that the length of a defendant’s prison sentence increasingly depends on the whims of the judge. For example, in Philadelphia, some of the judges ordered sentences 63 percent longer than their colleagues for identical crimes. Doug ...

Tennessee Legislature’s Investigation Finds Inadequate Supervision of Private Probation

by Derek Gilna

A December 2018 report by the Tennessee Comptroller of the Treasury after its audit of the state’s Private Probation Services Council found that it “did not adequately oversee private probation entities, putting probationers at risk.” The period was for July 1, 2013, through October 31, 2018 ...

The Many Pitfalls Associated With Police Lineups

by Ed Lyon 

Anyone who has ever watched a police drama on television is acquainted with the way suspect lineups are supposed to be conducted. The key words here are “supposed to be conducted.”

While many agencies probably conduct lineups properly, the system is subject to manipulation and ...

Illinois Data Collection Law Set to Expire; Collected Data Reveal Police Target Black and Latino Drivers

by Douglas Ankney

A law in Illinois that requires data to be reported from state and local police to the Illinois Department of Transportation is set to expire this July. Because “[t]ransparency is the first step toward police accountability and reform,” there are calls to make the ...

Criticizing Cops is a Criminal Act in Many States

by Ed Lyon

Most people are aware that slander and libel are civil torts for which they may be sued. In 1964, the U.S. Supreme Court set the standard of proof to be “actual malice” to prevail in civil libel cases. 

Many states also have laws criminalizing ...

Using Technology to Erase Old Pot Convictions is the Buzz in Los Angeles

by Douglas Ankney

Prosecutors in Los Angeles are using computer algorithms to wipe out or reduce up to 50,000 old marijuana convictions, years after the drug was legalized by voters in California. The county is teaming up with Code for America, a nonprofit tech organization that uses ...

News in Brief

Delaware: Wilmington police Corporal Thomas Oliver Jr. faces charges of second-degree rape, extortion and official misconduct. The 11-year police department veteran allegedly pulled up to a female pedestrian in October 2018 and told her to sit in the patrol vehicle passenger seat, according to delawareonline.com. According to court documents ...




 

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