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.S. nonetheless incarcerates more of its citizens per capita than any other nation on the planet—both guilty, and in far too many cases, factually innocent as well.
Innocent convictees caught up in the criminal justice system who are fortunate enough to later be declared innocent of their crime or removed from all legal encumbrances associated with their conviction because, for whatever reason(s), evidence of their innocence was not produced at trial and required later reconsideration, are called ‘exonerees.’
Attention to the plight of innocent convictees in the U.S. began to gain real traction in 1932 with the publication of Edwin Borchard’s book Convicting the Innocent. The main causes of wrongful convictions were pinpointed as “eyewitness misidentification, witness perjury, false confessions, police and prosecutorial misconduct, inadequate defense counsel, etc.” Study after study for the next 85 years consistently identify these as the principal factors for wrongful convictions. Beginning in the 1990s, DNA ...
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 murder, Detective Kenneth Williams attempted to locate him via his best friend, Cassio Vertil. On July 2, 2008, Kennel Vertil (Cassio’s brother) gave Cassio’s cellphone number to Williams and told Williams that Cassio was traveling to New York in a brown Toyota with two men named Stephen Allonce and Stanley Fredericq. Williams also learned from a confidential informant that Cassio was going to Florida in a brown Toyota to purchase narcotics.
The Commonwealth obtained a court order pursuant to 18 U.S.C. § 2703(d) to require the cellular service provider (“CSP”) to produce records for the period of July 1 through July 8 that included, among other things, “updates on the phone’s location every fifteen ... minutes.”
The CSP used “ping” technology to send radio signals to the cellphone and record the location of the cell sites (towers) with which the phone had communicated. These records (known as Cell Site Locator ...
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 our constitutional order, a vague law is no law at all…. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.” That’s precisely what Justice Gorsuch does, writing the opinion for a 5-4 majority (joined by Justices Breyer, Ginsburg, Kagan, and Sotomayor) in United States v. Davis, 2019 U.S. LEXIS 4210 (2019).
In light of SCOTUS’ opinions in Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated the residual clause of the Armed Career Criminal Act, the text of which is materially similar to § 924(c), as being unconstitutionally vague), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (invalidated the residual clause of 18 U.S.C. § 16(b), the text of which is nearly identical to that of the ...
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 forensic tool is used to turn the most microscopic materials into some of the most reliable evidence.
Less DNA Can Mean More Evidence
In the early days of DNA profiling, only substantial quantities of blood, semen or hair could suffice to produce a useful evidentiary result. But just about every cell in (or, as will be noted, on) the human body contains DNA, and over time, the science has evolved to take advantage of this fact. Today, not only is it possible to run tests on very small samples, but the practice of using software to sift “irrelevant” information from the materials under analysis, while retaining enough fidelity to hold up in court, has expanded DNA profiling far beyond its early boundaries.
One of the most impactful advances in the field has been experts’ ability to work with “trace” amounts of genetic material. And because testing methods have grown so ...
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 the motor vehicle nor the community caretaker exception applies to the warrantless search.
Alison Patricia Taylor received a lot of parking tickets from the City of Saginaw, Michigan.
Between 2014 and 2017, Tabitha Hoskins chalked Taylor’s tires 15 times, and each time, she issued a parking citation that included the date and time the chalk was placed on the tires. Citations cost $15 and upward.
Taylor filed a civil rights action under 42 U.S.C. § 1983 against the city and Hoskins. She argued that chalking her tires without a warrant or her consent violates her Fourth Amendment right to be free of unreasonable searches. The district court granted defendants’ motion to dismiss after finding that chalking was a search but is reasonable because of the lesser expectation of privacy in a motor vehicle and because it was subject to the community caretaker exception to the warrant requirement. Taylor appealed.
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, Parker was convicted of two charges related to theft of less than $1,500.00 while on mandatory supervision. Those charges resulted in two seven-year terms of imprisonment to run consecutively to the 20-year term on the UUMV sentence.
Parker in 2013 filed a habeas petition pursuant to 28 U.S.C. § 2254. In that petition, he argued that he had served enough time on the 20-year term for it to expire, which would then allow his new seven-year sentence to start. He raised an additional argument that the State violated the Ex Post Facto Clause by refusing to release him from custody for the 20-year term. The district court only considered the Ex Post Facto argument denying relief and a COA.
Shortly thereafter, the Texas Department of Criminal Justice (“TDCJ”) miscalculated Parker’s sentence running the seven-year term concurrently with the 20-year term and released him from prison. That release was short ...
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 a series of vicious “tweets” he simultaneously sent to “M.B.” and other individuals. M.B. was the object of the tweets. A.J.B. argued to the court of appeals that the statutes are unconstitutional. That court rejected his arguments, and the Supreme Court granted further review.
The Court observed, “The First Amendment to the United States Constitution states that ‘Congress shall make no law ... abridging the freedom of speech.’” The First Amendment applies to the states through the Fourteenth Amendment. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). The First Amendment means the government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content. Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564 (2002).
But there is a point where First Amendment protections end and government regulation of expression is permitted. Unprotected expressive conduct or speech includes: incitement to lawless actions; obscenity; defamation; speech integral to criminal conduct; ...
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 total population of any other jail in the state except Rikers Island.
The report stated that in the past four years the total number of pretrial detainees in New York City had decreased due to reformation initiatives, except parole violators, which have increased in percentage by double digits in that same time period.
New York’s parole system requires that parolees do regular check-ins, respond to all communications from their parole officer in a timely fashion, allow their parole officers to search their homes or places of employment at any time, and refrain from contact with anyone known to have a criminal record. Some conditions also require a parolee to live in a certain area, abide by a curfew, or enroll in a substance abuse program.
When a parolee is in violation of any aspect of his or her conditions, officers are encouraged to lock them up first. There are few ...
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, 68 F.Supp.3d 310 (E.D.N.Y. 2014). Some very clever and innovative people are using them to argue that federal district court judges are now empowered to take a second look at unduly harsh sentences and reduce them if “extraordinary and compelling reasons” exist. Encouragingly, this position appears to be gaining traction with federal district court judges.
In our June 2019 issue, staff writer Chad Marks introduced readers to this topic in his article titled “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,” in which he details his own decades-long sentence and quest for relief utilizing the foregoing provisions in arguing for his compassionate release based upon extraordinary and compelling reasons.
We now have the good fortune of providing readers with Professor Shon Hopwood’s thoughts and guidance on the matter. Shon is at the very forefront of this movement. ...
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 a close friend of Trayvon Martin, the black teenager who was killed by George Zimmerman in 2013. At Zimmerman’s trial, Jeantel testified about her phone conversation with Martin immediately before he was shot. Because Jeantel spoke in AAE, she was described on Fox News as “brutally ignorant” and as having a “credibility problem.” A juror on the case said she was “hard to understand” and “not credible.”
The May 23, 2019, Vice.com article cited Jeantel’s interaction with the justice system as the inspiration for the recent study titled, “Testifying while black: An experimental study of court reporter accuracy in transcription of African American English,” by Taylor Jones, University of Pennsylvania; Jessica Kalbfeld, New York University; Ryan Hancock, Philadelphia Lawyers for Social Equity; and Robin Clark, University of Pennsylvania, and published in the Linguistic Society of America journal Language.
The study authors sought to understand how well court reporters ...
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 appointee Neil Gorsuch, rejected convicted murderer Russell Bucklew’s death row claim that executing him with pentobarbital would constitute cruel and unusual punishment in violation of the Eighth Amendment. Bucklew argued that while pentobarbital might be acceptable in most cases, he suffers from a rare disease, cavernous hemangioma, which causes vascular tumors that would slow the effect of the pentobarbital and bring about several minutes of painful suffocation before he lost consciousness and died. The Court said too bad—no one is guaranteed a painless death.
As terrible as this result will be for Mr. Bucklew, the opinion will cause even more damage to American constitutional law. The Court analyzed what constitutes cruel and unusual punishment pursuant to the so-called “original meaning” school of interpretation, which holds that the Eighth Amendment should mean the same thing today that it did when it was adopted in 1791. To discern that meaning, Gorsuch looked ...
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 arrival, exceeded the scope of the consent to search.
The same way a search by human police officers is a “search” under the Fourth Amendment so too is a dog-sniff search by a K-9 unit. But they are not one and the same. When Pennsylvania police stopped Randy Valdivia on Interstate 80 for failure to use his turn signal and discovered that he had a prior drug conviction in Florida, they became suspicious of the Christmas packages in the backseat and asked if they could search his car. He consented. What he didn’t know, and what the troopers didn’t tell him was that they had also requested a K-9 unit to the scene.
About 40 minutes later, a K-9 unit arrived and searched Valdivia’s vehicle. The dog alerted to the Christmas packages, which contained about 20 pounds of marijuana. Charged with possession of the marijuana with intent to deliver, ...
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 several points in a bid for leniency, but the judge never asked Figueroa-Coello himself if he had anything to say before sentencing him to the top of his Guidelines range, violating the defendant’s right to “a specific and unequivocal opportunity to speak.” This right is not absolute, however. Since counsel did not object, Figueroa-Coello had to meet the demanding plain-error standard set forth in Puckett v. United States, 556 U.S. 129 (2009), on direct appeal.
The Court explained Puckett’s four-prong test as follows: “the appellant must show the lower court’s action (or lack thereof) (1) deviated from unwaived and established legal rules, (2) was ‘clear or obvious, rather than subject to reasonable dispute,’ and (3) affected his substantial rights. [Puckett] This court then has discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.”
The Government ...
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 carries a mandatory 30-year consecutive sentence.
David Garcia was convicted of using explosives to damage property under 18 U.S.C. § 844(i) and also convicted of possession of explosives in furtherance of a crime of violence under 18 U.S.C. § 924(c). The judge instructed the jury that § 844(i) was a “crime of violence” for purposes of § 924(c). Garcia was sentenced to five years in prison for the property damage convictions, plus a mandatory consecutive 30-year sentence for the § 924(c) conviction.
When Garcia appealed, his lawyer challenged only the interstate commerce element of § 844(i) and never mentioned that § 924(c) requires the use of violent force against the “property of another,” which could not have applied since Garcia blew up his own property.
Garcia’s conviction was affirmed by the Court of Appeals.
In a motion to vacate his § 924(c) conviction under 28 U.S.C. § 2255, Garcia argued that § 924(c) requires ...
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 career offender enhancement did not result in prejudice because a prior robbery conviction would still support the enhancement.
Antwaun Winbush pleaded guilty to one count of possession with intent to distribute cocaine base in 2011. His PSR designated two prior offenses, viz., trafficking cocaine and illegal conveyance of drugs onto the grounds of a detention facility, as prior drug offenses that supported a career offender enhancement under § 4B1.1 of the U.S. Sentencing Guidelines. Winbush then received 151 months at sentencing.
He filed a motion under 28 U.S.C. § 2255, arguing that his attorney should have challenged the conveyance charge as being insufficient to support the career offender enhancement because it lacked the prerequisite intent element. The district court agreed that counsel was deficient but decided no prejudice occurred because Winbush’s prior Ohio conviction for third-degree robbery would have been sufficient to sustain the career offender enhancement even if ...
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 Gordon Collins’ trial on charges of burglary and theft, the trial court asked, “Does anyone on this panel have any strong feelings about the offense of burglary to the point where you could not render a fair and impartial verdict?” (“compound strong feelings question”).None of the jurors responded. The court asked an identical question concerning the offense of theft, and again, no juror responded.
Defense counsel objected on the grounds that the questions should be asked in the form, “Does anyone on this panel have any strong feelings about the offense of burglary?” and “Does anyone on this panel have any strong feelings about the offense of theft?” (“strong feelings questions”). The court overruled the objection.
The court also asked if any of the prospective jurors or jurors’ family members had been victims of a crime (“victim question”); whether any member of the panel would allow sympathy, pity, anger, or ...
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 and another count of first-degree sexual assault against a different minor.
Pursuant to HRS § 706-601, a probation officer (“PO”) filed a presentence investigation and report (“PSI”). The PO stated in the PSI that Barnes would not participate in the PSI because Barnes was planning to file an appeal and that Barnes stated he was innocent of all charges.
At Barnes’ sentencing, the State moved for consecutive sentences because Barnes preyed upon two victims. Defense counsel opposed the motion and informed the court that upon counsel’s advice, Barnes would not be making any statement due to a planned appeal. The circuit court asked Barnes if he wanted to make a statement, and Barnes replied, “Not in this court, Your Honor.”
The circuit court then stated it considered all of the sentencing factors of HRS § 706-606, including the nature of the offense and Barnes’ characteristics. Then the judge said, “In ...
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. Valenzuela tried to punch Ramirez and then took Ramirez’s $200 bicycle from him after accusing him of being in a rival gang. Ramirez reported the incident, and the police recovered the bicycle at Valenzuela’s address and arrested him. A jury convicted Valenzuela of felony grand theft and of street terrorism.
While Valenzuela’s case was on appeal, the voters passed Proposition 47 (“Prop. 47” aka, the Safe Neighborhoods and Schools Act) in November 2014, which reduced to a misdemeanor any theft of property that did not exceed $950. Valenzuela petitioned the trial court to resentence him on his felony grand theft conviction after reclassifying it as a misdemeanor and to dismiss his street terrorism conviction because it was predicated on the former felony grand theft conviction. The trial court resentenced the theft conviction as a misdemeanor but refused to dismiss the street terrorism conviction. The trial court’s judgment was affirmed by ...
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 two boys he was babysitting in 2007. The boys, ages 3 and 4, did not report the abuse until 2012. Christopher was tried as an adult. He was convicted and given a sentence of 35 to 75 years in prison. Christopher subsequently filed a habeas petition alleging, inter alia, that W. Va. Code § 61-11-23(b) of the Juvenile Sentencing Reform Act of 2014 applied retroactively. The provision set parole eligibility at no more than 15 years for persons who committed their crimes before reaching age 18. The circuit court rejected Christopher’s argument, and he appealed to the Supreme Court of West Virginia.
The Court first provided the background to what prompted the Legislature to enact the Juvenile Sentencing Reform Act. It began with the Supreme Court of the United States’ (“SCOTUS”) decision prohibiting the imposition of a death sentence on defendants who committed their crimes before they were 18 years ...
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 to the murder-for-hire plot. As a result, D’Antoni was charged with conspiracy to kill a government witness.
D’Antoni pleaded guilty to both crimes. The court sentenced him to 35 years on the drug count, and a five-year consecutive term on the conspiracy charge.
While in prison serving his 40-year term, D’Antoni again found himself on the wrong side of the law. He was charged with conspiracy to distribute LSD while in jail. A jury convicted him of those charges. The presentence report calculated a mandatory Guidelines term of imprisonment range of 51-63 months.
The Government responded to that, arguing D’Antoni was a career offender and should be sentenced as such. Specifically, the Government contended that under the 1990 Guidelines his cocaine conviction was a qualifying controlled substance offense and that his conspiracy to kill a government witness conviction subjected him to the career offender Guidelines sentencing scheme. The court agreed, ...
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 for an indefinite term of one day to life.
In 1991, Chapman petitioned for release from civil commitment pursuant to G. L. c. 123A that was in effect at the time of his sentence and to be returned to ordinary confinement to serve the remainder of his original sentence. The judge granted his petition, and Chapman was returned to prison.
In 2004, when Chapman had one month remaining until his release from prison, the Commonwealth petitioned to have Chapman committed as a sexually dangerous person beyond the term of his criminal sentence. The petition was filed under the current version of G. L. c. 123A.
After a trial in 2007, Chapman was found to be a sexually dangerous person and was committed to the treatment center for an indeterminate period of one day to life.
In 2016, Chapman petitioned for release under G. L. c. 123A because both qualified examiners ...
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 free legal representation in court through the newly established Compassionate Release Clearinghouse. The clearinghouse, a collaborative pro bono effort between FAMM, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the National Association of Criminal Defense Lawyers (NACDL), is designed to match qualified prisoners with legal counsel should they need to fight a compassionate release denial or unanswered request in court.
“People who can barely make it out of their beds in the morning should not have to go into court alone against the largest law firm in the nation,” said Kevin Ring, president of FAMM. “Congress was clear that it wanted fundamental changes in compassionate release, yet we’ve seen prosecutors continue to fight requests from clearly deserving people, including individuals with terminal illnesses. It’s gratifying to know we will be able to help people in a tangible and meaningful way.”
The Compassionate Release Clearinghouse recruits, trains, ...
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.
“With about 685,464 full-time police officers in the U.S. from 2005 to 2007, we find that there were about 103 crimes per hundred thousand officers.” He added, “For the U.S. population as a whole, the crime rate was 37 times higher—3,813 per hundred thousand people.”
Lott noted that the statistics for police were admittedly low due to under-reporting and the fact that police officers do not arrest each other for many crimes for which average citizens are arrested.
But, “between October 1, 1987, and June 30, 2017, Florida revoked 11,189 concealed-handgun permits for misdemeanors and felonies,” according to the report. “This is an annual revocation rate of about 10.4 permits per 100,000.”
In Texas in 2016, there were “148 permit holders … convicted of a felony or misdemeanor—a conviction rate of 12.3 per 100,000,” Lott noted. “Among police, firearms violations occur at a rate of 16.5 per 100,000 ...
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 and reported, “One of [her] residents just came and said they saw someone with a gun.” When the dispatcher asked what the person was doing with the gun, Katowitz replied that the resident had only said a young black man of medium build with dreadlocks had a gun. Katowitz did not indicate that the resident was frightened or upset or otherwise alarmed by the gun’s presence. Likewise, there was no indication the man was loitering near the YWCA or harassing any of the residents. The reporting witness did not provide her name and refused to speak to the dispatcher or to the officers who responded to the call.
Officers Ryan Mikulcik and Curt Litsjo spotted Daniel Derek Brown, who matched the 911 description. They began driving behind Brown slowly for several blocks without ordering Brown to stop or otherwise communicating with him. When the officers turned on the patrol lights, ...
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 took effect on January 1, 2013.
On January 26, 2015, Candice Nicole Orr reported to police that her husband, Otto Orr, had repeatedly punched and kicked her in front of their child. Otto was arrested on January 28, 2015, and later charged with family violence battery and cruelty to children in the third degree. At trial, Otto testified that Candice was addicted to drugs and attacked him whenever she became angry. On the date of his alleged offense, Otto testified that he hit Candice in self-defense only after she had struck him over the eye with a glass ashtray. During the prosecutor’s cross-examination, she elicited testimony concerning Orr’s silence in not reporting the ashtray incident to police. During closing argument, the prosecutor again commented on Orr’s pre-arrest silence by telling the jury, “That night the defendant—he wants to now claim self defense. I find that particularly convenient. He never told the ...
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 name tags. Under a law that is slowly, inexorably and steadily becoming parts of state constitutions, name tags could well vanish as a standard part of police uniforms, at least figuratively and quite possibly even literally as a result of these constitutional amendments called Marsy’s Law.
Marsy’s Law is essentially a victims’ rights platform. Many people perceive that the Constitution’s Bill of Rights is more of a mandate for mollycoddling criminals than a leash to prevent the government from riding roughshod over the citizenry. With this belief so prevalent today, it is not difficult to understand the origin of the Marsy’s Law movement.
In 1983, Marsalee (“Marsy”) Nichols was murdered by her boyfriend. A week later, Marsy’s brother and mother met her alleged killer in a grocery store. He had been granted bail, but Marsy’s family had not been informed. The brother, Henry Nichols, is a billionaire, and ...
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 States,” despite high-profile cases such as that of 16-year-old Kalief Browder, who was held in Rikers Island jail for three years because his family was unable to pay the $3,000 bail. Browder later committed suicide, allegedly spurred in part by his experiences in jail. It appears that a paradigm shift on the part of judges and other decision-makers is the reason for this change, rather than new statutes or court rules. As the study shows, “Judges have drastically cut back on bail and jail in criminal cases. And defendants are still showing up in court.” The city’s return-to-court rate is 86 percent versus about 75 percent nationwide.
Data released by the New York City Criminal Justice Agency show that the percentage of cases in which bail is set has dropped from 48 percent to 23 percent and that the rate at which defendants are released without having to pay ...
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 him from custody.
Lofton was convicted in July of 2007 of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Although that charge carried a maximum sentence of 10 years’ imprisonment, at sentencing the district court handed down a 327-month sentence based on five qualifying priors under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), which mandates at least 15 years’ imprisonment where the defendant has a criminal history involving three or more “violent felonies” or “serious drug crimes.”
After the invalidation of the ACCA’s “residual clause” in Johnson v. United States, 135 S. Ct. 2551 (2015), and made retroactive on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016), Lofton sought collateral review of his sentence, claiming that four of those prior convictions — one for theft, one for aggravated criminal sexual abuse, and two for aggravated battery — no ...
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 May 3, 2017, due to an investigation into suspected large-scale methamphetamine distribution by Eredy Cruz-Ortiz. Special Agent Royce Clayborne received a tip from a confidential informant that a drug deal would occur in the parking lot of a Valero gas station. A surveillance team observed Jones arrive at the gas station and pull alongside a truck driven by Cruz-Ortiz’s roommate. The two vehicles left the gas station and traveled down County Road 213. Detective Michelle Langham drove by and observed the two vehicles meet for less than a minute in a dirt pull-off on the side of the road and then drive off in opposite directions. Officers followed only Jones’ vehicle. When Jones turned onto County Road 201, Langham instructed a sheriff’s deputy to stop Jones for a traffic violation. When the deputy activated his emergency lights, Jones sped up and passed out of view several times.
No one observed Jones ...
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 their rescuers. The psychological condition the hostages had succumbed to became aptly known as Stockholm syndrome.
In January 2018, Houston, Texas, an unnamed FBI agent employed an unorthodox solution to ensure against any possibility of being resisted by the hostage he was helping to rescue. The agent stuck the barrel of his M-4 rifle in the window of the dark room where hostage Ulises Valladares lay bound on a sofa — and shot Valladares.
The agent stated that when he stuck his M-4’s barrel into the window, someone grabbed the barrel, causing the agent to fire it twice, killing Valladares, who turned out to be the room’s only occupant.
In October 2018, Houston Police Chief Art Acevedo expressed disbelief in the agent’s story. “Our investigative findings do not support the description of how the shooting occurred by the shooting agent,” Chief Acevedo publically stated.
What a shame for ...
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 barbaric and reminiscent of our nation’s earlier and darker forays into eugenics.
Both of those arguments are valid, but the primary reason it is doomed to fail at having any significant impact on reducing child sexual assault is the same reason that other attempts such as residency restrictions and “child-safe zones” fail. It is the same reason that the registry itself is a dismal failure.
The registry, those laws, and this new attempt – its questionable efficacy aside — have failed and will continue to fail because they are targeting the wrong population.
Prior to the passage of Alabama’s law, nine other states have or have had laws allowing for the use of chemical castration in some shape or form.
California and Florida are cited as being states that, like Alabama, mandate its use. The language in California law, Section 645 (1996) states that with a victim under 13, the injections ...
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 volunteers to determine the impact of evidence of an impulse control disorder on sentencing.
The evidence for this disorder was either presented as having a neurobiological cause (as shown by an abnormal brain scan) or merely a psychological one. The condition also was variously presented as treatable or untreatable. Participants were given the option to allocate some of the sentence between prison time and involuntary hospitalization.
Compared to the baseline (in which the hypothetical offender has no diagnosed impulse control disorder), participants were likely to reduce the amount of prison time by 33 percent when presented evidence of a psychological disorder that was untreatable and by 54 percent when it was treatable. When presented with neurobiological evidence, prison times were reduced even further, with the treatable case resulting in a 74 percent reduction in prescribed prison time compared to the untreatable case, which resulted in a 53 percent ...
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 obtaining employment.
Geoffrey Goliath, associate executive director of GOSO, says when a company employs a person through GOSO, the first 240 hours of work are paid for by GOSO.
Once the former prisoners complete that internship period, they are either hired or let go by the companies in which they have been placed.
Goliath said about 70 percent of GOSO’s placements get full-time jobs at the same pay rate as everyone else.
Oliver and Leo Kremer own Dos Toros, a restaurant chain with 20 locations that participates in GOSO. Michael Van Leuvan, one of their employees hired through GOSO, is an example. He was 15 when he was sent away for drugs. Van Leuvan said his time in prison began with a gang and that he returned multiple times after being released.
Now, at age 31, he has a wife and three kids and is thrilled to ...
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.
“Review of the Department of Justice’s Implementation of the Death in Custody Reporting Act of 2013” examines state and federal law enforcement agencies and their compliance with the Death in Custody Reporting Act of 2013. That federal bill — H.R.1447 and S.2807 — calls for all federal law enforcement agencies to create an inventory of deaths that have occurred under their custody.
According to the report, many law enforcement agencies have yet to comply with the law, with work remaining to collect data. Further, it is not even clear to the Office of Inspector General that a full inventory exists of which federal agencies even have law enforcement authority.
In fact, the inspector general concluded that it is “impossible ... to fully assess DCRA compliance for the whole of the federal government,” it wrote. “[U]ntil [the U.S. Department of Justice Bureau of Justice Statistics] collects complete reports from all federal ...
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 805 (Ct. App. 1997), which imposed a “prompt and speedy” pleading requirement.
On March 7, 2008, Ezequiel Lopez-Quintero was found guilty of first-degree intentional homicide and carrying a concealed weapon. At Lopez-Quintero’s sentencing the following month, his attorneys were instructed by the trial court that a Notice of Intent to Pursue Postconviction Relief (“Notice”) must be filed within 20 days if Lopez-Quintero planned to appeal. The court provided him with a “Notice of Right to Seek Postconviction Relief” form. Lopez-Quintero reviewed the form with his attorneys and marked the box indicating “I plan to seek postconviction relief.” One of the attorneys signed the form and certified that he counseled his client about the 20-day deadline to make a decision about seeking postconviction relief and filing a Notice. At the conclusion of the sentencing hearing, one of the attorneys said he would “get that other document [Notice] filed within 20 days.” But no ...
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, pp.40-41], coupled with an overall lack of unitized standards [CLN, January 2019, p.35], open people’s eyes to the real world of forensic science.
Just when conditions cannot seem to sink any lower, New York City’s Office of the Chief Medical Examiner (“OCME”) has been outed as having extensively used a DNA testing method for over 20 years without ever conducting a scientific study to prove its validity.
Low Copy Number (“LCN”) DNA testing uses miniscule bits of DNA from multiple donors taken from items found at crime scenes. The items could be firearm grips, bludgeons, or a purse. The city’s OCME began using this method in 2006 and quit using it in 2017. During this time, the OCME represented that the LCN testing method had been vetted by proper scientific analysis but refused to release the results. “OCME stands behind its science,” stated ...
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 under the Sixth Amendment.
The appeal by Saylor Suazo came after a bench trial that resulted in convictions for Class B misdemeanors of attempted assault in the third degree, attempted criminal obstruction of breathing or blood circulation, menacing in the third degree, and attempted criminal contempt in the second degree. Each of those charges were reduced immediately before trial from Class A misdemeanors, which carry more than six months imprisonment, to Class B misdemeanors that carry three months imprisonment by amending the charges to attempts.
The distinction was important because the Supreme Court of the United States (“SCOTUS”) has held that the Sixth Amendment right to a jury trial does not apply to “so-called petty offenses.” Baldwin v. New York, 399 U.S. 66 (1970). The clear rule is that “no offense can be deemed petty for purposes of the right to trial by jury where imprisonment for more ...
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 of her absolute worst nightmares, while now wide awake.
On Klein’s front porch stood officers Stephen Madison and Christopher Hendricks. In her front yard stood officers Michael Good and Jacoby Glenny amidst a phalanx of other cops. Without preamble, Madison first asked Klein if her son was there and then if cops could search her home.
Klein asked if they had either a warrant to arrest her son or to search her home. When Madison admitted to having no warrants, Klein refused entry into her home and attempted to close the screen door.
As Klein tried to close the screen door, Madison reached out his hand to prevent the closure. His finger was caught and slightly pinched. Madison then jerked the screen door open, grabbed the petite, 4 feet, 11-inch tall grandmother by her shoulders and bully-handled her outside to the porch. With Madison on one of the ...
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 the Electronic Frontier Foundation (“EFF”), and various investigative reporting outlets, Americans have been told time and again that they are under ever-increasing surveillance. We “opt-in” to data collection in exchange for various conveniences and entertainments, but we rarely understand the consequences of doing so.
A great many Americans carry smartphones without understanding their true surveillance potential. In 2010, The Washington Post revealed the NSA has the means to locate cellphones “even when they are turned off” and had used this technology in pursuit of terrorist targets in Iraq.
Even closer to home, it was reported in 2016 that the FBI has a technique called the “roving bug,” which allows them to enable your phone’s microphone, converting it to a listening device without your knowledge. And while many Americans are aware that Google collects their “data,” few understand the true extent of this surveillance.
A bipartisan group from the U.S. ...
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) or perjury/false accusation (111), with both often occurring in combination.
Matthew Sopron was convicted of double murder and sentenced to life without parole in Chicago in 1998. At a postconviction hearing in 2018, William Bigeck—the prosecutor’s star witness who had implicated Sopron—testified that Sopron “had absolutely nothing to do with the murders.” Bigeck further stated he was 18 at the time of the crime, and he only changed his story after prosecutors threatened him with the death penalty.
Daniel Villegas was convicted of capital murder in El Paso, Texas, and was sentenced to life. He was 16 years old and falsely confessed to the crimes after a detective handcuffed him to a chair, threatened to take him to the desert and “beat his ass,” slapped him, and told him he would die in the electric chair if he didn’t confess. The Texas courts reversed his conviction due to ineffective assistance of ...
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 the then 31-year-old Coley was sentenced to life without parole.
Former California Governor Jerry Brown pardoned Coley in 2017 after at least three law enforcement officers opined that a detective had “mishandled” the case. Investigators in Simi Valley, about 40 miles northwest of Los Angeles, discovered biological samples from the case in a laboratory. The trial court had ordered the samples destroyed, but a private firm purchased the laboratory and stored the samples. DNA testing of key pieces of evidence used at the trial — a bed sheet and one of Donald’s tee-shirts — revealed someone other than Coley committed the crimes.
This case was unusual in that all concerned government officials — including the police department and current prosecuting attorney — agreed that the now 71-year-old Coley was wrongfully convicted and deserved the $21 million in compensation.
“While no amount of money can make up for what happened to ...
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, 2019, with an unpaid doll, newsmaven.io reports. Cellphone video shows police pulling over Dravon Ames, 22, and his pregnant fiancée, Iesha Harper, 24, along with their children, ages 1 and 4, at their babysitter’s apartment complex. Cops were responding to an anonymous report of shoplifting at the store. “Multiple videos show Phoenix police officers with guns drawn, screaming orders rife with profanities and foul language,” newsmaven.io reports. “Officers are seen surrounding the car, pulling their guns and threatening to kill them.” Officers, who have not been named, were not wearing body cameras. Ames was cited for driving with a suspended license.
California: Armed with a sledgehammer and warrant, San Francisco cops raided the home of freelance journalist Bryan Carmody May 10, 2019, in search of the source of a confidential police report into the Feb. 22 death of San Francisco Public Defender Jeff Adachi. “I knew what they wanted,” ...
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 General Dana Nessel to announce the creation of a Conviction Integrity Unit (“CIU”). “We have a duty to ensure those convicted of state crimes by county prosecutors and our office are in fact guilty of those crimes,” Nessel said in a written statement.
Most of the exonerations came from Wayne County in cases involving Detroit police. The wrongful convictions were the result of systemic problems so entrenched in the Detroit police department in the 1990s and early 2000s that the federal government entered into a consent judgment/settlement with the city to avoid lawsuits alleging mistreatment of citizens and excessive use of force. Wayne County has its own CIU, and the newly created CIU will take cases from all the other counties.
Nessel named longtime criminal defense attorney Robyn B. Frankel as the head of the CIU. Frankel’s appointment is to ensure the thoroughness of the CIU when reviewing cases that ...