Skip navigation
InmateMagazineService.com

Criminal Legal News: September, 2019

Issue PDF
Volume 2, Number 9

In this issue:

  1. The Role of Police Misconduct in Wrongful Convictions (p 1)
  2. Seventh Circuit: Woman Answering Door of Suspect’s Residence Wearing Bathrobe Does Not Constitute Apparent Authority to Consent to Search (p 11)
  3. Column: Obtaining Relief Under 'Davis' in the Wake of 'Johnson' (p 12)
  4. Virtual Imprisonment as Big Brother Interactively Listens From Cradle to School to Prison to Parole to Grave (p 14)
  5. Oregon Supreme Court: Claim Based on New Rule of Constitutional Law Cognizable in Untimely Oregon PCR Action (p 15)
  6. Massachusetts Supreme Court Holds Statute Requiring GPS Monitoring of Probationers Convicted of Sex Offenses Unconstitutional ‘as Applied’ (p 16)
  7. Montana Supreme Court Rules Leaving a Brewery Doesn’t Provide Particularized Suspicion of DUI (p 16)
  8. Change to New York Misdemeanor Definition May Benefit Non-Citizens (p 17)
  9. Refusing to Permit Attorney to Make Offer of Proof Is Abuse of Discretion, Says Indiana Supreme Court (p 18)
  10. Colorado Supreme Court Announces That Claims of Insufficient Evidence Not Preserved at Trial Are Subject to De Novo Review on Appeal (p 18)
  11. Taking Notes Influences Jurors’ Verdicts (p 19)
  12. Fourth Circuit Reverses Lower Court for Giving Dispositive Weight to Plea Agreement Language Rather Than Fact-Based Evaluation of Weight of Evidence in IAC Claim (p 20)
  13. Sixth Circuit: Prosecutor’s Numerous Improper Comments Constitute Flagrant Misconduct Depriving Defendants of a Fair Trial (p 20)
  14. New Jersey Supreme Court: Prosecution May Appeal Drug Court Sentence Only When Sentence Is Illegal (p 21)
  15. Indiana Supreme Court Reduces 30-Year Prison Sentence to 23-Year Community Corrections Placement in Rare Case (p 22)
  16. SCOTUS: SOL Governing § 1983 Claim Asserting Fabrication of Evidence Begins to Run on Date Criminal Proceedings Are Terminated in Complainant’s Favor (p 22)
  17. NYU Study Shows ‘Predictive Policing Systems’ Promote Bad Data, Bad Policing (p 23)
  18. Colorado Supreme Court Announces That the People Cannot Withdraw From a Plea Agreement After the Trial Court Rejects Stipulated Sentence (p 24)
  19. BOP Finally Implements First Step Act, Officially Releases 3,100 Prisoners Under ‘Good Conduct Time’ (p 24)
  20. $13.1 Million Settlement Reached by Actor Framed for Murder (p 25)
  21. Oregon Supreme Court Holds ‘Attempt’ Requires Intent to Personally Participate in the Crime (p 26)
  22. California Supreme Court Reverses Attempted Murder and Explains Elements Required For Kill Zone Theory Instruction (p 26)
  23. California Court of Appeal Announces Defendant Convicted of Felony Accessory Is Eligible for Resentencing Under Proposition 64 (p 27)
  24. Vermont Supreme Court Rules DUI Breath Test Subject to Voluntariness Challenge Despite Implied Consent Law (p 28)
  25. Massachusetts Supreme Judicial Court Explains Procedures of G. L. c. 278A and Rules That a Claim of Self-Defense Is a Claim of Factual Innocence (p 28)
  26. Massive Outing of Nationwide Instances of Police Misconduct Revealed (p 29)
  27. Qualified Immunity: Explained (p 30)
  28. 7th Circuit Instructs District Court to Grant Federal Prisoner’s Habeas Based on § 2255(e) Savings Clause (p 32)
  29. Another Study Shows There’s No ‘War on Police’ (p 33)
  30. Tennessee Supreme Court Holds Judge Lacks Authority to Sign Search Warrant for Property Outside Court’s Jurisdiction (p 34)
  31. Colorado Supreme Court Announces Sniff by Drug Dog Trained to Detect Marijuana Now Constitutes a ‘Search’ Requiring Probable Cause (p 34)
  32. Houston Police Cover up Crime Scene With Poor Investigation Techniques (p 35)
  33. Will Police Recruitment Crisis Prompt Change in Behavior? (p 35)
  34. Florida Supreme Court Holds Sentencing Statute That Allows Judge to Determine Dangerousness Triggering Upward Depar-ture of Maximum Sentence Unconstitutional (p 36)
  35. Minnesota Supreme Court Clarifies That State Has Burden to Prove Competency to Stand Trial (p 36)
  36. Sixth Circuit Announces § 2244(B)(1) Doesn’t Apply to Successive § 2255 Petitions and Rules That If the District Court Relied on Residual Clause of ACCA When Determining Prior Conviction Qualified as Predicate Felony, Then Sentence Cannot Stand (p 37)
  37. Groundbreaking Empirical Study of Expungement Released (p 38)
  38. Second Circuit Holds NY Sodomy Not ‘Prior Sex Conviction’ for Purposes of Federal Statute Mandating Life Sentence for Repeat Sex Offenders (p 38)
  39. California Losing Millions in Civil Asset Forfeiture Funds as Law Aims to Curb Police Abuse (p 39)
  40. Private Companies Use DNA Profiles to Snitch on Customers and Their Families (p 39)
  41. Chicago Fingerprint Unit Flawed, Under Scrutiny (p 40)
  42. Seventh Circuit Rules Failure to Issue Summons or Warrant Means Supervised Release Not Tolled While Merely in Custody (p 40)
  43. Video Bail Hearings Violate Rights in Many Ways (p 41)
  44. Debunked Shaken-Baby Syndrome Leads to Reduced Sentence (p 41)
  45. St. Louis Ordered to Stop Holding Detainees Simply Because They Can’t Afford Bail (p 42)
  46. News in Brief (p 42)

The Role of Police Misconduct in Wrongful Convictions

by Matt Clarke

Police misconduct takes on many forms, from unjustified violence, murder, torture, sexual assault, theft of evidence—usually cash or drugs—and extortion, to actively assisting or participating in organized crime. However, this article will focus on a narrow segment of the many-faceted police misconduct problem—misconduct that leads to wrongful ...

Seventh Circuit: Woman Answering Door of Suspect’s Residence Wearing Bathrobe Does Not Constitute Apparent Authority to Consent to Search

by Chad Marks

The U.S. Court of Appeals for the Seventh Circuit asked itself an interesting question, viz.: “Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence?” The ...

Column: Obtaining Relief Under 'Davis' in the Wake of 'Johnson'

by Dale Chappell

The good news is that the Supreme Court of the United States has declared yet another residual clause unconstitutional. The not-so-good news is that the last time the Court did this, the lower courts created all sorts of roadblocks to stop prisoners from taking advantage of the ...

Virtual Imprisonment as Big Brother Interactively Listens From Cradle to School to Prison to Parole to Grave

by Ed Lyon

In today’s world of technological marvels, electronic monitoring has far surpassed being useful merely to virtually imprison pretrial releasees and parolees. Nanotechnology has enabled parents to keep their children on an electronic tether while Big Brother sees a lot more than most people would ever believe — ...

Oregon Supreme Court: Claim Based on New Rule of Constitutional Law Cognizable in Untimely Oregon PCR Action

by Mark Wilson

The Supreme Court of Oregon held that an untimely post-conviction relief (“PCR”) action based on a new U.S. Supreme Court ruling is authorized under an “escape clause” to the statute of limitations. However, the Court then rejected the petitioner’s argument that the U.S. Supreme Court’s ...

Massachusetts Supreme Court Holds Statute Requiring GPS Monitoring of Probationers Convicted of Sex Offenses Unconstitutional ‘as Applied’

by Douglas Ankney

The Supreme Judicial Court of Massachusetts held that Massachusetts General Law, chapter 265, § 47 (“G.L. c. 265, § 47”), is overinclusive and is unconstitutional as applied to Ervin Feliz in requiring him to be subject to Global Positioning System (“GPS”) monitoring as a condition of ...

Montana Supreme Court Rules Leaving a Brewery Doesn’t Provide Particularized Suspicion of DUI

by Anthony Accurso

The Supreme Court of Montana held that facts leading up to the traffic stop at issue do not amount to the particularized suspicion required to initiate a lawful stop under Montana law.

On the afternoon of January 14, 2017, Missoula County Sheriff’s Deputy Tyler Terrill observed Billy ...

Change to New York Misdemeanor Definition May Benefit Non-Citizens

by Michael Berk

New York’s new amendment to its penal code reduces the maximum sentence for Class A misdemeanor offenses to 364 days. The previous maximum punishment was one year in jail.

The One Day to Protect New Yorkers Act, passed by the state legislature and signed by Governor Andrew ...

Refusing to Permit Attorney to Make Offer of Proof Is Abuse of Discretion, Says Indiana Supreme Court

by Douglas Ankney

The Supreme Court of Indiana held that a superior court abuses its discretion when it refuses to allow an attorney to make an offer of proof when the attorney has done nothing to delay or abuse the trial process.

In 2011, the Marion Superior Court sentenced Anthony ...

Colorado Supreme Court Announces That Claims of Insufficient Evidence Not Preserved at Trial Are Subject to De Novo Review on Appeal

by Douglas Ankney

In two separate cases, the Supreme Court of Colorado announced that claims challenging the sufficiency of evidence are to be reviewed de novo on appeal even when the claims were not preserved at trial.

In the first case, David Lewis McCoy invited “P.K.” and “G ...

Taking Notes Influences Jurors’ Verdicts

by Douglas Ankney

Research from the University of Liverpool published in PLOS ONE reveals the impact notetaking by jurors has on their ability to recall evidence and on their verdicts.

Participants in a study had their handwriting speed, short-term memory, working memory, and attention assessed. They then watched a video ...

Fourth Circuit Reverses Lower Court for Giving Dispositive Weight to Plea Agreement Language Rather Than Fact-Based Evaluation of Weight of Evidence in IAC Claim

by David M. Reutter

The U.S. Court of Appeals for the Fourth Circuit ruled that an attorney rendered ineffective assistance of counsel by advising the defendant that the crime to which he was pleading guilty carried a “mere possibility” of deportation when, in fact, it carried mandatory deportation.

Sergio ...

Sixth Circuit: Prosecutor’s Numerous Improper Comments Constitute Flagrant Misconduct Depriving Defendants of a Fair Trial

by Anthony Accurso

The U.S. Court of Appeals for the Sixth Circuit vacated the conviction of two defendants on possession with intent to distribute methamphetamine charges because the prosecutor’s numerous improper comments amounted to flagrant misconduct.

Luis Morales-Montanez and Jessica Acosta pleaded guilty to charges involving marijuana, cocaine, and ...

New Jersey Supreme Court: Prosecution May Appeal Drug Court Sentence Only When Sentence Is Illegal

by Douglas Ankney

The Supreme Court of New Jersey held that the State cannot appeal a “special probation Drug Court sentence” unless the sentence is illegal.

Susan Hyland was driving drunk when she struck and killed a 16-year-old boy. Hyland fled the scene. After she was indicted on three charges ...

Indiana Supreme Court Reduces 30-Year Prison Sentence to 23-Year Community Corrections Placement in Rare Case

by Chad Marks

In August 2013, Lisa Livingston was arrested for various drug charges involving 3.35 grams of methamphetamine and one baggie of cocaine weighing 1.89 grams.

Livingston posted a $75,000 property bond and was released from jail. Part of the conditions of Livingston’s release was that ...

SCOTUS: SOL Governing § 1983 Claim Asserting Fabrication of Evidence Begins to Run on Date Criminal Proceedings Are Terminated in Complainant’s Favor

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) held that the statute of limitations for Edward McDonough’s 42 U.S.C. § 1983 claim alleging that he was prosecuted using fabricated evidence began to run when the criminal proceedings against him terminated in his favor.

McDonough processed ...

NYU Study Shows ‘Predictive Policing Systems’ Promote Bad Data, Bad Policing

by Dale Chappell

A New York University study shows that “predictive policing” does nothing to prevent crime but actually increases bad policing in cities already struggling with corrupt police forces.

This means that in at least 13 cities, predictive policing is helping to propagate more bad police work where cops ...

Colorado Supreme Court Announces That the People Cannot Withdraw From a Plea Agreement After the Trial Court Rejects Stipulated Sentence

by Douglas Ankney

The Supreme Court of Colorado announced that the People cannot withdraw from a plea agreement after the trial court accepts the defendant’s guilty plea but rejects the stipulated sentence contained in the agreement.

Christopher Anthon Mazzarelli entered into an agreement with the People whereby he pleaded guilty ...

BOP Finally Implements First Step Act, Officially Releases 3,100 Prisoners Under ‘Good Conduct Time’

by Dale Chappell

The long-awaited extra seven days of good conduct time (“GCT”) is finally being applied by the Bureau of Prisons (“BOP”), which will result in the official release of 3,100 prisoners from BOP custody, according to a July 2019 Department of Justice press release on behalf of ...

$13.1 Million Settlement Reached by Actor Framed for Murder

by Douglas Ankney

The Board of Supervisors of San Francisco approved a settlement of $13.1 million in a claim brought by a man who had spent more than six years in prison after police framed him for murder. The decision was unanimous.

In 2010, aspiring actor and hip-hop artist ...

Oregon Supreme Court Holds ‘Attempt’ Requires Intent to Personally Participate in the Crime

by Dale Chappell

In order to be found guilty of an attempt to commit a crime, the defendant must have intended to personally participate in the crime, and the attempt to solicit another person to commit the crime is not a true “attempt” under Oregon law, the Supreme Court ...

California Supreme Court Reverses Attempted Murder and Explains Elements Required For Kill Zone Theory Instruction

by Anthony Accurso 

The Supreme Court of California clarified that the use of force that merely endangers everyone in an area is insufficient to support a kill zone theory instruction for attempted murder. 

Defendants KeAndre Windfield and Michael Canizales were charged with murder and two counts of attempted ...

California Court of Appeal Announces Defendant Convicted of Felony Accessory Is Eligible for Resentencing Under Proposition 64

by Douglas Ankney

In September 2013, William Roy Boatwright was arrested while exiting a house later discovered to contain 107 pounds of marijuana, 60 pounds of marijuana shake, a vacuum-sealing device, drug paraphernalia, and four grams of methamphetamine. Boatwright told officers he was helping a friend package marijuana inside the ...

Vermont Supreme Court Rules DUI Breath Test Subject to Voluntariness Challenge Despite Implied Consent Law

by Mark Wilson

The Supreme Court of Vermont held that the state’s implied consent statute does not bar a voluntariness challenge to a breath test.

Every person who operates a motor vehicle on a Vermont highway is deemed to have given consent to an evidentiary breath test to determine blood ...

Massachusetts Supreme Judicial Court Explains Procedures of G. L. c. 278A and Rules That a Claim of Self-Defense Is a Claim of Factual Innocence

by Douglas Ankney

The Supreme Judicial Court of Massachusetts explained the procedures for filing and adjudicating a motion brought under G. L. c. 278A, which allows those convicted access to forensic and scientific testing of evidence that could potentially prove their innocence, and ruled that a defendant convicted of manslaughter ...

Massive Outing of Nationwide Instances of Police Misconduct Revealed

by Ed Lyon

As reports of police abusing and even murdering citizens continues to rise over the years, databases of their misdeeds are emerging all over the U.S. These databases provide citizens with a great deal of transparency into these crimes that were formerly shrouded in secrecy by police ...

Qualified Immunity: Explained

by Amir H. Ali and Emily Clark, The Appeal, a nonprofit criminal justice news site

In [The Appeal] Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil ...

7th Circuit Instructs District Court to Grant Federal Prisoner’s Habeas Based on § 2255(e) Savings Clause

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit reversed a district court’s judgment and remanded with instructions to grant a federal prisoner’s 28 U.S.C. § 2241 habeas petition seeking resentencing based on the savings clause of 28 U.S.C. § 2255(e ...

Another Study Shows There’s No ‘War on Police’

by Bill Barton

"Currently, the ‘war on cops’ thesis is not supported by any evidence, and we apply the 50-year lens in this study to provide important context for understanding recent trends in officer deaths.” That’s the conclusion of an in-depth study, some 25 pages long, “Assessing dangerousness in ...

Tennessee Supreme Court Holds Judge Lacks Authority to Sign Search Warrant for Property Outside Court’s Jurisdiction

by Dale Chappell

The Supreme Court of Tennessee affirmed the tossing of evidence against nearly 100 defendants, after the Court agreed with the lower courts and held that a judge cannot sign a search warrant to search property located outside the judge’s jurisdiction and that the “good faith exception” does ...

Colorado Supreme Court Announces Sniff by Drug Dog Trained to Detect Marijuana Now Constitutes a ‘Search’ Requiring Probable Cause

by Dale Chappell

Now that marijuana is legal in several states, does a sniff by a drug dog trained to detect marijuana (and other drugs) constitute a “search,” since it can now reveal something that is lawful to possess (small amounts of marijuana)? The Supreme Court of Colorado ruled ...

Houston Police Cover up Crime Scene With Poor Investigation Techniques

by Kevin Bliss

The Houston Police Department (“HPD”) is being accused of sloppy investigations surrounding the details of a warrant executed in January 2019, which resulted in the deaths of homeowners Dennis Tuttle and Rhogena Nicholas in a botched no-knock drug raid. In addition, four officers were shot, and one ...

Will Police Recruitment Crisis Prompt Change in Behavior?

by Douglas Ankney

When schoolchildren were asked what they wanted to be when they grew up, a frequent answer used to be “a policeman.” But apparently that’s no longer true. Sixty-six percent of police departments across the U.S. reported a decline in applications, according to a survey of ...

Florida Supreme Court Holds Sentencing Statute That Allows Judge to Determine Dangerousness Triggering Upward Depar-ture of Maximum Sentence Unconstitutional

by Dale Chappell

A Florida sentencing statute that allows a judge to find aggravating factors to impose a higher sentence violates the Sixth Amendment to the U.S. Constitution, the Supreme Court of Florida held.

When Laverne Brown was convicted of a third-degree felony, she scored a total of 16 ...

Minnesota Supreme Court Clarifies That State Has Burden to Prove Competency to Stand Trial

by Dale Chappell

The State and not the defendant has the burden to prove that a defendant is competent to stand trial, the Supreme Court of Minnesota held, clarifying the rule on the issue of determining competency to stand trial.

After two doctors evaluated Edwin Curtis when defense counsel raised ...

Sixth Circuit Announces § 2244(B)(1) Doesn’t Apply to Successive § 2255 Petitions and Rules That If the District Court Relied on Residual Clause of ACCA When Determining Prior Conviction Qualified as Predicate Felony, Then Sentence Cannot Stand

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit announced that limitation of 28 U.S.C. § 2244(b)(1) doesn’t apply to successive § 2255 petitions and ruled that if it is appears more likely than not that the district court relied on the ...

Groundbreaking Empirical Study of Expungement Released

by Bill Barton

An empirical study of a state law limiting public access to criminal records has been released by professors Sonja B. Starr and J.J. Prescott of Michigan Law School.

Starr and Prescott said, “Despite the considerable legislative ferment and the excitement that surrounds ‘clean slate’ initiatives in ...

Second Circuit Holds NY Sodomy Not ‘Prior Sex Conviction’ for Purposes of Federal Statute Mandating Life Sentence for Repeat Sex Offenders

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit held that a prior conviction for sodomy under New York law is not a valid prior sexual offense conviction under the categorical approach to mandate a life sentence as a repeat sex offender under 18 U.S ...

California Losing Millions in Civil Asset Forfeiture Funds as Law Aims to Curb Police Abuse

For decades, federal asset forfeiture revenue in California soared from the sale of seized properties. Police used federal law to seize everything from boats to vehicles to homes, thereby circumventing California laws. Opponents call it “policing for profit” or “theft by cop.”

Consider that in 2015 law enforcement operations ...

Private Companies Use DNA Profiles to Snitch on Customers and Their Families

by Douglas Ankney

Most DNA testing companies will not provide customer data to law enforcement unless there is a lawful court order. But FamilyTreeDNA distinguishes itself by not just permitting police to access its consumer data but also relishes in doing so. In a company ad, the father of kidnapping-victim ...

Chicago Fingerprint Unit Flawed, Under Scrutiny

by Bill Barton

In 2016, Cook County prosecutors relied on a fingerprint lifted from a laptop as pivotal evidence against a juvenile charged with robbery.

According to Chicago Reporter coverage of the case, Judge Stuart Katz “ripped into the competence of Chicago police Sergeant Thurston Daniels III, the forensics expert ...

Seventh Circuit Rules Failure to Issue Summons or Warrant Means Supervised Release Not Tolled While Merely in Custody

by Anthony Accurso

The U.S. Court of Appeals for the Seventh Circuit ruled that, where a defendant is detained prior to the expiration of his supervised release, he must be released when his supervision expires unless the court orders a warrant or summons, not merely a detention order.

William ...

Video Bail Hearings Violate Rights in Many Ways

by Ed Lyon

Television crime dramas really do reflect reality when they show that one of the first things that occurs in an arrestee’s life is an arraignment. It is at this proceeding a judge hears whatever evidence the government’s and arrestee’s attorneys present, along with their arguments for a ...

Debunked Shaken-Baby Syndrome Leads to Reduced Sentence

by Anthony Accurso

An Ohio man who spent 27 years on death row for the 1991 murder of his daughter Domika—based largely on now-debunked shaken baby syndrome—had his conviction overturned and has accepted a plea deal for a life sentence with the possibility of parole after 30 years. Genesis Hill ...

St. Louis Ordered to Stop Holding Detainees Simply Because They Can’t Afford Bail

by Kevin Bliss

In response to a lawsuit, District Court Judge Audrey Fleissig of the Eastern District of Missouri ruled in favor of four detainees in St. Louis’ City Workhouse, forbidding St. Louis’ “jail system from detaining people for weeks on the sole basis of an inability to afford bail ...

News in Brief

Alabama: Deputy Jeff Graves resigned from the Madison County sheriff’s department after making homophobic statements about a Huntsville teen’s suicide, but he’s still a lawman today. Graves was hired by the neighboring Owens Cross Roads Police, newsweek.com reports on July 12, 2019. Graves had posted online “comments in an ...




 

Advertise here

 

Prisoner Education Guide side

 

Federal Prison Handbook