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Criminal Legal News: August, 2019

Issue PDF
Volume 2, Number 8

In this issue:

  1. Exonerations: From Wrongful Conviction to Release and Beyond (p 1)
  2. Massachusetts Supreme Judicial Court: Consent to Search Does Not Attenuate Seized Evidence From Taint of Illegal Search of CSLI (p 10)
  3. SCOTUS Announces Death of ‘Categorical Approach’ by Invalidating 18 U.S.C. § 924(c)(3)(B) as Unconstitutionally Vague (p 12)
  4. ‘DNA Mixtures,’ ‘Touch DNA,’ and Software-Enhanced Forensic DNA Analysis (p 14)
  5. Sixth Circuit Holds Chalking Car Tires for Parking Enforcement Constitutes a Search Under Fourth Amendment (p 14)
  6. Fifth Circuit: Denial of Habeas Petition as Successive Reversed Where Second Petition Challenges a Separate Judgment, by Same Court, Not Covered in First Petition (p 16)
  7. Minnesota Supreme Court Holds ‘Stalking-by-Mail’ and ‘Mail-Harassment’ Statutes are Facially Overbroad (p 16)
  8. Parole a Detriment to Rehabilitation; ‘Less Is More’ Reform Sensible (p 17)
  9. From the Editor: Compassionate Release for Extraordinary and Compelling Reasons (p 18)
  10. Court Reporters Likely Fail to Accurately Transcribe Testimony for Speakers of ‘African American English’ (p 22)
  11. Bucklew v. Precythe (p 22)
  12. Pennsylvania Supreme Court Holds Consent to Search Does Not Include K-9 Sniff When No K-9 Present When Consent Given and Wait 40 Minutes for Its Arrival (p 24)
  13. Fifth Circuit: Plain Error Requiring Resentencing Where Court Didn’t Give Defendant Chance to Speak at Sentencing Hearing and Prospective Allocution Provided Added Details to Lead Reasonable Judge to Reconsider Harsh Sentence (p 24)
  14. Court Extends McQuiggin Actual Innocence Exception to Defaulted Legal Claim, Vacates § 924(c) Conviction (p 25)
  15. Fourth Circuit: Cannot Substitute Career Offender Predicate on Collateral Review (p 26)
  16. Maryland Court of Appeals Rules That Courts Must Ask Non Compound ‘Strong Feelings’ Question Upon Request During Voir Dire (p 26)
  17. Hawai’i Supreme Court Remands for Resentencing Where Circuit Court Considered Defendant’s Refusal to Admit Guilt in Imposing Consecutive Sentences (p 27)
  18. California Supreme Court: Prop 47 Requires Dismissal of Conviction Based on a Predicate Felony That Is Later Reduced to a Misdemeanor (p 28)
  19. West Virginia Supreme Court Announces Parole Eligibility Statute for Prisoners Who Committed Crimes as Minors is Retroactive (p 28)
  20. Seventh Circuit Orders Grant of Successive § 2255 Motion and 
Resentencing in Pre-Booker Mandatory Guidelines Case Involving Elements Clause’s Definition of ‘Crime of Violence’ (p 29)
  21. Massachusetts Supreme Court: Discharge From Civil Commitment 
Required When Examiners Conclude Defendant Is Not Sexually Dangerous (p 30)
  22. FAMM, Washington Lawyers’ Committee, NACDL Launch Compassionate Release Clearinghouse (p 30)
  23. Private Citizens Carrying Guns Commit Fewer Crimes Than Cops (p 31)
  24. Ninth Circuit: Running From Police Alone Doesn’t Give Rise to Reasonable Suspicion Justifying Stop and Frisk (p 32)
  25. Georgia Supreme Court Announces New Evidence Code Abrogates Categorical Exclusionary Rule of Mallory (p 32)
  26. Under Marsy’s Law, Police Using Violence Can Claim ‘Victim’ Status (p 32)
  27. New York City’s Bail Success Story (p 34)
  28. Eighth Circuit Overlooks Procedural Default, Orders Immediate Release From Excessive ACCA Sentence Based on Prior Sex Offense (p 34)
  29. Fifth Circuit: Confrontation Clause Violated When Officer’s Testimony Relates Incriminating Information Received From Non-Testifying Informant (p 35)
  30. The FBI Polices Itself Like Kids Guarding a Candy Store (p 36)
  31. ‘They need to be marked for life’ (p 36)
  32. Study Details the Effect of Brain Scan Evidence on Sentencing (p 37)
  33. NYC Program Helps Former Prisoners Realize Their Dream (p 37)
  34. Report Finds Lack of Reporting on Deaths in Law Enforcement Custody, Even After Landmark Legislation (p 38)
  35. Wisconsin Supreme Court Holds That Statute Doesn’t Require Habeas Petitioner to Plead Timeliness, Overruling Smalley v. Morgan (p 38)
  36. $1 Million Settlement for NYC Crime Lab Tech Who Blew Whistle on Use of Untested DNA Tests for Decades (p 39)
  37. New York Court of Appeals: Jury Trial Right Attaches to Deportable Crimes Punishable by Less Than Six Months in Jail (p 40)
  38. $270,000 Awarded to Grandmother Brutalized by Pennsylvania Cops (p 40)
  39. Report: Google Can Track You Even When Your Phone’s Off (p 41)
  40. Police, Prosecutor Misconduct Continues Unabated as Evidenced by Record Number of Exonerations in 2018 (p 41)
  41. $21 Million Settlement for Wrongfully Convicted Man Released After 39 Years in Prison (p 42)
  42. News in Brief (p 42)
  43. Record Number of Exonerations Prompts Michigan AG to Create Conviction Integrity Unit (p 42)

Exonerations: From Wrongful Conviction to Release and Beyond

by Ed Lyon 

A state-sponsored formal religion in the U.S. is forbidden by the nation’s Constitution. Regardless, one part of the country’s ethos closely approaches a level of worship. That part is freedom. Enshrined in the Pledge of Allegiance as “the land of the free,” the U ...

Massachusetts Supreme Judicial Court: Consent to Search Does Not Attenuate Seized Evidence From Taint of Illegal Search of CSLI

by Douglas Ankney

The Supreme Judicial Court of Massachusetts suppressed illegally obtained CSLI, ruling that the Commonwealth failed to meet its burden under the Fourth Amendment of proving police did not exploit the illegally obtained evidence to obtain the defendant’s consent to search. 

After Josener Dorisca was indicted for ...

SCOTUS Announces Death of ‘Categorical Approach’ by Invalidating 18 U.S.C. § 924(c)(3)(B) as Unconstitutionally Vague

by Richard Resch

In announcing the end of 18 U.S.C. § 924(c)’s residual clause in defining certain “crimes of violence” while using or possessing a firearm for purposes of sentence enhancement, the Supreme Court of the United States (“SCOTUS”) begins its opinion by explaining: “In ...

‘DNA Mixtures,’ ‘Touch DNA,’ and Software-Enhanced Forensic DNA Analysis

by Michael Berk

The premise that a DNA “match” conclusively overrides nearly all other evidence in a criminal case has become a deep-seated one over the 35 years since the inception of DNA profiling. Often, though, such views are not founded upon even a basic understanding of how this powerful ...

Sixth Circuit Holds Chalking Car Tires for Parking Enforcement Constitutes a Search Under Fourth Amendment

by Matt Clarke

The U.S. Court of Appeals for the Sixth Circuit held that chalking the tires of parked vehicles to gather information about whether they have committed a parking violation constitutes a search for Fourth Amendment purposes and that, at the pleading stage of the current case, neither ...

Fifth Circuit: Denial of Habeas Petition as Successive Reversed Where Second Petition Challenges a Separate Judgment, by Same Court, Not Covered in First Petition

by Chad Marks

In 1991, Steve Vic Parker was convicted in a state court in Texas for unauthorized use of a motor vehicle (“UUMV”) and sentenced to 20 years’ imprisonment. Parker was eventually released from prison on mandatory supervision and returned to prison for violating that supervision.

In 2010 ...

Minnesota Supreme Court Holds ‘Stalking-by-Mail’ and ‘Mail-Harassment’ Statutes are Facially Overbroad

by Douglas Ankney

The Supreme Court of Minnesota held that Minn. Stat. § 609.749(2)(6) (“stalking by mail”) and Minn. Stat. § 609.695(1)(3) (“mail harassment”) are facially overbroad. Juvenile defendant “A.J.B.” was convicted of stalking by mail and mail harassment stemming from ...

Parole a Detriment to Rehabilitation; ‘Less Is More’ Reform Sensible

by Kevin Bliss

Prison reform advocates contend that parole does more to perpetuate recidivism than it does to monitor positive rehabilitation into society. Columbia University’s Justice Lab prepared a report in 2017 that stated that New York City’s jail population had more people being held for parole violations than the ...

From the Editor: Compassionate Release for Extraordinary and Compelling Reasons

by Richard Resch

As our regular readers know, there has been a relative flurry of activity recently involving the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A), the First Step Act of 2018, S. 3747, 115th Cong., and the so-called Holloway doctrine, United States v. Holloway ...

Court Reporters Likely Fail to Accurately Transcribe Testimony for Speakers of ‘African American English’

by Anthony Accurso 

A recent Vice.com article draws attention to a pioneering study that concludes court reporters exhibit low proficiency with African American English (“AAE”), and that the problem results in a systemic deprivation of the most basic rights in the criminal justice system. 

Rachel Jeantel was ...

Bucklew v. Precythe

by Michael Avery

If you want to know what it will be like having five Justices on the Supreme Court who are Federalist Society members, read the Court’s April 1 decision in Bucklew v. Precythe, 139 S.Ct. 1112. The five conservative Justices, in an opinion by the Trump ...

Pennsylvania Supreme Court Holds Consent to Search Does Not Include K-9 Sniff When No K-9 Present When Consent Given and Wait 40 Minutes for Its Arrival

by Dale Chappell

In a case of first impression, the Supreme Court of Pennsylvania held that a search in connection with a traffic stop that was performed 40 minutes after consent was given, because there was no K-9 unit on scene so police made the motorist wait until its ...

Fifth Circuit: Plain Error Requiring Resentencing Where Court Didn’t Give Defendant Chance to Speak at Sentencing Hearing and Prospective Allocution Provided Added Details to Lead Reasonable Judge to Reconsider Harsh Sentence

by Michael Berk

The U.S. Court of Appeals for the Fifth Circuit remanded Jose Santos Figueroa-Coello’s case for resentencing, holding that the district court’s violation of Rule 32 of the Federal Rules of Criminal Procedure amounted to reversible plain error. 

At this defendant’s sentencing hearing, counsel briefly mentioned ...

Court Extends McQuiggin Actual Innocence Exception to Defaulted Legal Claim, Vacates § 924(c) Conviction

by Dale Chappell

The U.S. District Court for the Eastern District of California held in a collateral proceeding on January 2, 2019, that McQuiggin’s actual innocence exception applies to a legal claim that was procedurally defaulted, vacating a conviction under 18 U.S.C. § 924(c) that ...

Fourth Circuit: Cannot Substitute Career Offender Predicate on Collateral Review

by Anthony Accurso

The U.S. Court of Appeals for the Fourth Circuit reversed a district court’s denial of a defendant’s § 2255 motion, holding the lower court committed clear error when it rejected defendant’s claim that his attorney’s failure to challenge a prior drug conviction for use as a ...

Maryland Court of Appeals Rules That Courts Must Ask Non Compound ‘Strong Feelings’ Question Upon Request During Voir Dire

by Douglas Ankney

The Court of Appeals of Maryland reaffirmed that, upon request, trial courts must ask non-compound “strong feelings question” of potential jurors during voir dire in the following form: “Do any of you have strong feelings about [crime with which defendant is charged]?” 

During voir dire in ...

Hawai’i Supreme Court Remands for Resentencing Where Circuit Court Considered Defendant’s Refusal to Admit Guilt in Imposing Consecutive Sentences

by Douglas Ankney

The Supreme Court of Hawai’i remanded for resentencing in a case where the circuit court based the sentence, in part, on the defendant’s refusal to admit guilt.

In 2015, Ronald Melvin Barnes was convicted by a jury of four counts of first-degree sexual assault against a minor ...

California Supreme Court: Prop 47 Requires Dismissal of Conviction Based on a Predicate Felony That Is Later Reduced to a Misdemeanor

by Douglas Ankney

The Supreme Court of California ruled that when the felony underlying a conviction for “street terrorism” is later reduced to a misdemeanor, then the street terrorism conviction must be vacated and the charge dismissed.

In 2013, Luis Donicio Valenzuela and his associate Timothy Medina confronted Mannie Ramirez ...

West Virginia Supreme Court Announces Parole Eligibility Statute for Prisoners Who Committed Crimes as Minors is Retroactive

by Douglas Ankney

The Supreme Court of West Virginia announced that the provision of the Juvenile Sentencing Reform Act of 2014 that applies to parole eligibility for persons who committed crimes when they were less than 18 years of age is to be applied retroactively.

Sixteen-year-old Christopher J. sexually abused ...

Seventh Circuit Orders Grant of Successive § 2255 Motion and 
Resentencing in Pre-Booker Mandatory Guidelines Case Involving Elements Clause’s Definition of ‘Crime of Violence’

by Chad Marks

In 1987, Todd D’Antoni was charged with selling cocaine to a juvenile resulting in her death.

While being held in jail on those charges, he solicited another prisoner to kill a government witness for cash and drugs. That prisoner contacted law enforcement, agreeing to cooperate in regards ...

Massachusetts Supreme Court: Discharge From Civil Commitment 
Required When Examiners Conclude Defendant Is Not Sexually Dangerous

by Douglas Ankney

Following convictions for two counts of rape of a child in 1977, Wayne Chapman was sentenced to prison for a term of 15 to 30 years. But later that same year, Chapman was found to be a sexually dangerous person and committed to the Massachusetts Treatment Center ...

FAMM, Washington Lawyers’ Committee, NACDL Launch Compassionate Release Clearinghouse

First Step Act paves the way for a massive pro bono effort to represent sick, dying, and elderly prisoners in court.

The following is a press release from FAMM:

WASHINGTON – Thousands of sick, dying, and elderly federal prisoners who are eligible for early release will now have access to ...

Private Citizens Carrying Guns Commit Fewer Crimes Than Cops

by Douglas Ankney

According to a study by the Crime Prevention and Research Center (“CPRC”), citizens with a permit to carry a concealed weapon “are convicted of misdemeanors and felonies at less than a sixth of the rate for police officers.” John R. Lott, Jr., president of CPRC, said ...

Ninth Circuit: Running From Police Alone Doesn’t Give Rise to Reasonable Suspicion Justifying Stop and Frisk

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit held that running from police, by itself, does not provide reasonable suspicion to justify stopping and frisking the person.

Sandra Katowitz — an employee of the YWCA in the Belltown neighborhood of Seattle, Washington — called 911 ...

Georgia Supreme Court Announces New Evidence Code Abrogates Categorical Exclusionary Rule of Mallory

by Douglas Ankney

On May 6, 2019, the Supreme Court of Georgia held that the categorical exclusionary rule first announced in Mallory v. State, 409 S.E.2d 839 (Ga. 1991), is no longer the law in Georgia because the rule was abrogated by the “new” evidence code that ...

Under Marsy’s Law, Police Using Violence Can Claim ‘Victim’ Status

by Ed Lyon

Citizens encounter cops in many ways. Cops respond to emergencies, provide security at some public gatherings and private forums, direct traffic, and address children in schools. Aside from uniform colors and headgear styles, cops look pretty similar with their utility belts, shoulder patches, collar tabs, badges and ...

New York City’s Bail Success Story

by Bill Barton

A new study that analyzed more than 5 million criminal cases in New York City — beginning in 1987 — intimates that the city has “already done a better job of slashing its use of bail and jail than nearly any other urban area in the United ...

Eighth Circuit Overlooks Procedural Default, Orders Immediate Release From Excessive ACCA Sentence Based on Prior Sex Offense

by Michael Berk

The U.S. Court of Appeals for the Eighth Circuit reversed the denial of William Anthony Lofton’s 28 U.S.C. § 2255 petition, remanding to the U.S. District Court for the Southern District of Iowa with instructions to vacate his ACCA sentence and immediately release ...

Fifth Circuit: Confrontation Clause Violated When Officer’s Testimony Relates Incriminating Information Received From Non-Testifying Informant

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ruled that when a testifying officer relates the statement of a non-testifying confidential informant that facially incriminates a defendant, it violates the defendant’s Sixth Amendment right to confront witnesses against him.

Coy Marshall Jones was arrested on ...

The FBI Polices Itself Like Kids Guarding a Candy Store

by Ed Lyon

In the early 1970s, an armed team entered a Stockholm, Sweden, bank to rescue hostages being held by bank robbers, as well as to, hopefully, arrest the robbers. 

To the rescuers’ shock and surprise, the hostages took up weapons with their captors to fight against ...

‘They need to be marked for life’

by Sandy, NARSOL

The mandatory chemical castration law that has just passed in Alabama is being debated every way possible. Health professionals are weighing in on why, medically, it is not an effective prevention strategy. From a moral and human rights perspective, the general consensus is that it is ...

Study Details the Effect of Brain Scan Evidence on Sentencing

by Anthony Accurso

A new study shows that neurobiological evidence (brain scans) used at sentencing may reduce the amount of prison time prescribed at sentencing but may conversely also increase the amount of prescribed involuntary hospitalization. 

This study performed by researchers at Georgia State University used controlled surveys of ...

NYC Program Helps Former Prisoners Realize Their Dream

A vast majority of prisoners dream of getting out of prison and staying out. They talk about it, and most plan for it. A program in New York City called “Getting Out and Staying Out,” or “GOSO” for short, helps former prisoners do exactly that.

GOSO assists them with ...

Report Finds Lack of Reporting on Deaths in Law Enforcement Custody, Even After Landmark Legislation

by Steve Horn

The Office of the Inspector General at the U.S. Department of Justice has unfurled a new study on state and federal law enforcement agencies’ reporting of deaths of individuals who were under the custodial watch of federal law enforcement agents. The results are disturbing ...

Wisconsin Supreme Court Holds That Statute Doesn’t Require Habeas Petitioner to Plead Timeliness, Overruling Smalley v. Morgan

by Douglas Ankney

The Supreme Court of Wisconsin held that neither Wisconsin Statute (“Wis. Stat”) § (Rule) 809.51 nor principles of equity impose a “prompt and speedy” pleading requirement in a habeas petition. In so doing, the Court overruled State ex rel. Smalley v. Morgan, 565 N.W.2d ...

$1 Million Settlement for NYC Crime Lab Tech Who Blew Whistle on Use of Untested DNA Tests for Decades

by Ed Lyon 

Television crime dramas like Bones and CSI that depict sterile, efficient crime labs seem to be little more than good art imitating bad life as instance after instance of shoddy work and poor conditions from Wisconsin [CLN, March 2019, p.30] to Texas [CLN, March 2019 ...

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 ...

$270,000 Awarded to Grandmother Brutalized by Pennsylvania Cops

by Ed Lyon 

Peacefully sleeping the night away, grandmother Charlene Klein was rudely awakened by Allentown, Pennsylvania, cops beating on her door on May 2, 2016. A law-abiding citizen, she opened her front door in response to the Knights in Blue’s persistent pounding, only to find herself entering one ...

Report: Google Can Track You Even When Your Phone’s Off

by Anthony Accurso 

An article recently published on TheAntiMedia.com highlights various ways the U.S. government and corporations track one’s everyday movements through his or her cellphone and singles out Google’s Sensorvault project for scrutiny. 

Between the revelations of whistleblower Edward Snowden, the efforts of organizations like ...

Police, Prosecutor Misconduct Continues Unabated as Evidenced by Record Number of Exonerations in 2018

by Douglas Ankney

According to an analysis of the National Registry of Exonerations performed by the Death Penalty Information Center, a record 151 exonerations were reported in 2018. Victims of wrongful homicide convictions accounted for 68 exonerations. The overwhelming majority of wrongful convictions were obtained by police/prosecutorial misconduct (107 ...

$21 Million Settlement for Wrongfully Convicted Man Released After 39 Years in Prison

by Douglas Ankney

Simi Valley, California, and a wrongfully convicted man who spent nearly four decades in prison have reached a $21 million settlement.

Craig Coley was convicted of the 1978 murders of Rhonda Wicht and her 4-year-old son Donald. Wicht had been raped. Prosecutors sought the death penalty, but ...

News in Brief

Arizona: Rapper Jay-Z has hired attorney Alex Spiro for a family preparing to sue the city of Phoenix for $10 million, alleging excessive force by police, unlawful imprisonment, false arrest, physical injuries, emotional stress and civil rights violations after their 4-year-old daughter walked out of a dollar store May 29 ...

Record Number of Exonerations Prompts Michigan AG to Create Conviction Integrity Unit

by Douglas Ankney

Few nightmares can equate with being an innocent person wrongly convicted and incarcerated.

Since innocence projects began appearing in the 1990s, dozens of prisoners in Michigan have been exonerated. In 2017 a record number—14—were exonerated, according to the National Registry of Exonerations. This prompted Michigan Attorney ...




 

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