Skip navigation
Prison Profiteers

Criminal Legal News: January, 2020

Issue PDF
Volume 3, Number 1

In this issue:

  1. Insurance Companies Are Paying Cops To Investigate Their Own Customers (p 1)
  2. Hawai’i Supreme Court Announces New Rule Requiring Both Judges and Juries to Consider Numerous Factors in Witness ID Cases (p 10)
  3. Fourth Circuit: Ineffective Assistance of Counsel in Death Penalty Case for Failure to Investigate Fetal Alcohol Syndrome as Mitigating Factor During Sentencing Phase (p 11)
  4. From the Editors (p 12)
  5. U.S. District Court Holds Hobbs Act Robbery not Crime of Violence for § 924(c), Grants § 2255 Motion (p 12)
  6. If It Saves More Than One Child (p 14)
  7. Perils of Risk Assessment Tools in Criminal Justice (p 14)
  8. Tenth Circuit Holds Davis Retroactive, Retaliation Against a Witness Not Crime of Violence Under § 924(c) (p 16)
  9. Police Use of Rapid DNA Machines Unregulated (p 17)
  10. Refusing to Permit Attorney to Make Offer of Proof Is Abuse of Discretion, Says Indiana Supreme Court (p 18)
  11. On Remand from Supreme Court, Eleventh Circuit Holds in Specific Circumstances an Ake Violation Constitutes Structural Error (p 18)
  12. Harmless Error: Explained (p 20)
  13. Washington Supreme Court: Failure to Pay Fines Don’t Increase Sentencing Score (p 23)
  14. Third Circuit Grants Habeas Relief in Loss of GBMI Plea in Pennsylvania Court Due to IAC, Announces New Rule (p 24)
  15. Eleventh Circuit: Conspiracy to Commit Hobbs Act Robbery not a Crime of Violence Under 18 U.S.C. § 924(c) (p 26)
  16. NJ Supreme Court: Confession not Voluntary Where Police Tell Suspect Truth Would Set Him Free, Promise Him Counseling Instead of Jail, and Minimize Seriousness of Offenses (p 26)
  17. Costly Electronic Monitoring Programs Replacing Ineffective Jail Bond Systems (p 27)
  18. Colorado Supreme Court Announces Clarifications and Modifications to Proportionality Review Standard as Applied to Habitual-Offender Sentences (p 28)
  19. Sixth Circuit Holds Career Offender Status Does not Bar Retroactive FSA Relief Under First Step Act (p 30)
  20. Using Algorithms to Erase Pot Convictions in California (p 30)
  21. Supreme Court of Hawai’i Rules Presenting Falsified Polygraph Results Is Coercive Per Se (p 31)
  22. Nevada Supreme Court: Trial Court Must Give Manslaughter Instruction Even When Evidence Is Circumstantial (p 32)
  23. Seventh Circuit Reaffirms Sex Trafficking and Kidnapping Are not Violent Felonies for 924(c) After Davis (p 32)
  24. Santa Didn’t Create Naughty Cops List, But It’s Worth Checking Twice (p 33)
  25. Georgia Supreme Court: Warrantless Search of Vehicle’s Airbag Control Module is Unconstitutional (p 34)
  26. Seventh Circuit Vacates Sentence Because Sentencing Judge Should Have Recused Himself Due to Ex Parte Communications with U.S. Attorney’s Office (p 34)
  27. U.S. Supreme Court ‘Death Caucus’ Setting Death Penalty Litigation Tone (p 35)
  28. California Court of Appeal: Equal Protection Requires Pretrial Detainees on Home Confinement Be Eligible for Good Conduct Credits (p 36)
  29. Georgia Supreme Court Announces Fundamental Overhaul of Jurisprudence Governing Appeals of Guilty Pleas and Out-of-Time Appeals (p 37)
  30. Sixth Circuit Reverses District Court’s Denial of Safety-Valve Relief (p 38)
  31. Tennessee Supreme Court Reverses Conviction Because Trial Court Refused to Give ‘Necessity’ Jury Instruction Because Defendant Never Testified About Mental State (p 39)
  32. New York Court of Appeals Overturns Murder Conviction, Finds Prosecutor Withheld Critical Video Evidence in Violation of Brady Obligations (p 40)
  33. Seventh Circuit Holds Indiana Pointing a Firearm and Intimidation Convictions No Longer Qualify Under ACCA After Johnson (p 41)
  34. Asset Forfeiture Not So Helpful to Crime-Fighting (p 41)
  35. National Fingerprint Database Frees Man After 36 Years (p 42)
  36. News in Brief (p 43)

Insurance Companies Are Paying Cops To Investigate Their Own Customers

A cozy alliance between insurers and law enforcement has turned the justice system into the industry’s hired gun and left innocent customers facing prison.

by Kendall Taggart, BuzzFeed News Reporter, August 15, 2019

When police showed up at Harry Schmidt’s home on the outskirts of Pittsburgh, he thought they ...

Hawai’i Supreme Court Announces New Rule Requiring Both Judges and Juries to Consider Numerous Factors in Witness ID Cases

by Dale Chappell

The Supreme Court of Hawai’i held on October 1, 2019, that when a judge assesses the admissibility of an eyewitness’ identification of a defendant, not only does the jury have to consider a list of factors in deciding if the witness has properly identified to defendant, but ...

Fourth Circuit: Ineffective Assistance of Counsel in Death Penalty Case for Failure to Investigate Fetal Alcohol Syndrome as Mitigating Factor During Sentencing Phase

by Chad Marks

The U.S. Court of Appeals for the Fourth Circuit affirmed a district court’s finding that counsel in a capital case was ineffective for their failure to investigate potentially mitigating evidence of Fetal Alcohol Syndrome (“FAS”) during the sentencing phase.

Charles Christopher Williams was convicted by a South ...

From the Editors

It’s fundraising season once again. If you have not already done so, please donate to our annual fundraiser to help the Human Rights Defense Center continue its advocacy work, cutting-edge journalism, and litigation on behalf of prisoners and their families. We do not just need the support of people like ...

U.S. District Court Holds Hobbs Act Robbery not Crime of Violence for § 924(c), Grants § 2255 Motion

by Dale Chappell

The U.S. District Court for the Northern District of California granted a motion under 28 U.S.C. § 2255, holding that substantive Hobbs Act robbery is not categorically a crime of violence to support a conviction under 18 U.S.C. § 924(c).

For over two decades, Rey Chea had ...

If It Saves More Than One Child

by Sandy Rozek, NARSOL

Across America this Halloween, and in the weeks preceding it, massive campaigns were under way to protect children from persons on sexual offense registries.

Efforts ranged from “house arrest” jail detention for those on parole or probation during trick-or-treat hours to signs placed in yards and ...

Perils of Risk Assessment Tools in Criminal Justice

by Jayson Hawkins

Risk assessment tools have frequently been mentioned as useful aids in the push toward criminal justice reform, yet little research has been done concerning their accuracy, validity, or effectiveness in this area.

In response to legislation in several states that would make the use of such tools ...

Tenth Circuit Holds Davis Retroactive, Retaliation Against a Witness Not Crime of Violence Under § 924(c)

by Dale Chappell

In a lengthy opinion addressing two issues of first impression in the circuit, the U.S. Court of Appeals for the Tenth Circuit held that United States v. Davis, 139 S. Ct. 2319 (2019) (holding 18 U.S.C. § 924(c)(3)(B) void for vagueness), created a new substantive right that’s ...

Police Use of Rapid DNA Machines Unregulated

by Jayson Hawkins

For every step that technological advances make on the march of progress, so too are pathways opened to abuse. The current rush among law enforcement agencies to acquire “Rapid DNA” machines has thus raised red flags.

These devices enable the user to “generate an identifying DNA profile” ...

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 ...

On Remand from Supreme Court, Eleventh Circuit Holds in Specific Circumstances an Ake Violation Constitutes Structural Error

by Douglas Ankney

On remand from the Supreme Court of the United States (“SCOTUS”), the U.S. Court of Appeals for the Eleventh Circuit held that in the particular facts and circumstances of James McWilliams’ sentencing, the Alabama sentencing court’s violation of the provisions of Ake v. Oklahoma, 470 U.S. 68 ...

Harmless Error: Explained

by Gabe Newland, The Appeal

This Explainer was produced by The Appeal, a nonprofit criminal justice news site.

In our 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 ...

Washington Supreme Court: Failure to Pay Fines Don’t Increase Sentencing Score

by Anthony Accurso

The Supreme Court of Washington held that time spent in jail for failure to pay court fines does not count against an offender at sentencing for a new crime.

Matthew T. Schwartz pleaded guilty to failure to register as a sex offender in 2017 after failing to ...

Third Circuit Grants Habeas Relief in Loss of GBMI Plea in Pennsylvania Court Due to IAC, Announces New Rule

by Dale Chappell

The U.S. Court of Appeals for the Third Circuit granted habeas relief on September 3, 2019, to a Pennsylvania state prisoner who had lost his opportunity to enter a “guilty but mentally ill” (“GBMI”) plea because of trial counsel’s ineffective assistance, which in effect deprived him of ...

Eleventh Circuit: Conspiracy to Commit Hobbs Act Robbery not a Crime of Violence Under 18 U.S.C. § 924(c)

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit held that conspiracy to commit Hobbs Act robbery is not a crime of violence as defined by 18 U.S.C. § 924(c)(3).

In 2014, Michael Brown pleaded guilty to conspiracy to commit Hobbs Act robbery in violation of 18 ...

NJ Supreme Court: Confession not Voluntary Where Police Tell Suspect Truth Would Set Him Free, Promise Him Counseling Instead of Jail, and Minimize Seriousness of Offenses

by Douglas Ankney

The Supreme Court of New Jersey held that a confession is not voluntary when police induce a suspect to confess by saying to him, “Telling the truth will set you free,” assuring him he will not go to jail but instead will receive counseling and minimizing the ...

Costly Electronic Monitoring Programs Replacing Ineffective Jail Bond Systems

by Kevin Bliss

America’s troubled bail systems that discriminate against the poor and are proven to be a costly and ineffective means of managing pretrial detainees are being replaced with one just as prejudicial but more burdensome. Cities and counties are now utilizing electronic monitoring to keep track of those ...

Colorado Supreme Court Announces Clarifications and Modifications to Proportionality Review Standard as Applied to Habitual-Offender Sentences

by Douglas Ankney

On November 4, 2019, the Supreme Court of Colorado announced clarifications and modifications to proportionality reviews of habitual-offender sentences.

Belinda May Wells-Yates was found guilty of second-degree burglary, conspiracy to commit second-degree burglary, theft, possession with intent to sell or distribute 7 grams or less of methamphetamine, ...

Sixth Circuit Holds Career Offender Status Does not Bar Retroactive FSA Relief Under First Step Act

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held on November 21, 2019, that a person sentenced under the career offender guideline does not bar the district court from granting relief under the Fair Sentencing Act of 2010 (“FSA”), which was made retroactive by the First ...

Using Algorithms to Erase Pot Convictions in California

by Douglas Ankney

In 2016, California voters legalized marijuana. They also approved a proposition that allowed the state to expunge past pot convictions. But the law places many hurdles in the path of expungement.

“The way the legislation was written really kind of puts it all on the people that ...

Supreme Court of Hawai’i Rules Presenting Falsified Polygraph Results Is Coercive Per Se

by Douglas Ankney

The Supreme Court of Hawai’i ruled that when police communicate a deliberate falsehood about the results of a polygraph test during interrogation the falsehood is an extrinsic falsehood that is coercive per se, and any subsequent inculpatory statements are inadmissible at trial.

Keith T. Matsumoto was the ...

Nevada Supreme Court: Trial Court Must Give Manslaughter Instruction Even When Evidence Is Circumstantial

by Douglas Ankney

The Supreme Court of Nevada held that a district court must instruct the jury on voluntary manslaughter when requested by the defense so long as it is supported by some evidence, even if that evidence is circumstantial.

Late one night in Las Vegas, witnesses heard rapid gunfire ...

Seventh Circuit Reaffirms Sex Trafficking and Kidnapping Are not Violent Felonies for 924(c) After Davis

by Dale Chappell

After a remand by the U.S. Supreme Court, the U.S. Court of Appeals for the Seventh Circuit, on July 30, 2019, reaffirmed its earlier decision in two cases that the “residual clause” of 18 U.S.C. § 924(c) is unconstitutionally vague and that sex trafficking and felony kidnapping ...

Santa Didn’t Create Naughty Cops List, But It’s Worth Checking Twice

by Douglas Ankney

The New York City Police Department (“NYPD”) has members who made the “naughty list” of the Bronx District Attorney’s Office. The heavily redacted list — obtained October 7, 2019 by the New York Post through a Freedom of Information Request — names 75 current and former officers, ...

Georgia Supreme Court: Warrantless Search of Vehicle’s Airbag Control Module is Unconstitutional

by Douglas Ankney

The Supreme Court of Georgia held that a warrantless search of a vehicle’s airbag control module (“ACM”) is unconstitutional.

In December 2015, Victor Mobley was driving his 2014 Dodge Charger when he collided with a 1999 Corvette. Mobley survived the crash, but the two people in the ...

Seventh Circuit Vacates Sentence Because Sentencing Judge Should Have Recused Himself Due to Ex Parte Communications with U.S. Attorney’s Office

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit vacated the sentence of James Atwood because Judge Colin S. Bruce should have recused himself before imposing a sentence on Atwood because of Bruce’s ex parte communications with the prosecuting U.S. Attorney’s Office.

Atwood appeared before Bruce for ...

U.S. Supreme Court ‘Death Caucus’ Setting Death Penalty Litigation Tone

by Kevin Bliss

The conservative majority of the U.S. Supreme Court has been taking a hard stance against last-minute filings, effectively intimidating already-scarce death penalty attorneys. This could lead state and federal judges to give “short shrift” to death penalty appeals, The Atlantic reports.

The Court has made multiple rulings ...

California Court of Appeal: Equal Protection Requires Pretrial Detainees on Home Confinement Be Eligible for Good Conduct Credits

by Douglas Ankney

The Court of Appeal of California, First Appellate District, Division Two, held that equal protection requires that pretrial detainees held in home confinement on electronic monitoring be eligible for good conduct credits against their sentences later imposed by the trial court.

William Antonio Yanez pleaded no contest ...

Georgia Supreme Court Announces Fundamental Overhaul of Jurisprudence Governing Appeals of Guilty Pleas and Out-of-Time Appeals

by Douglas Ankney

In a landmark ruling, the Supreme Court of Georgia completely overhauled the state’s jurisprudence governing appeals of cases that resulted in guilty pleas and governing out-of-time appeals, overturning more than 75 prior decisions.

In September 2009, Cordalero Collier pleaded guilty to felony murder, and the court sentenced ...

Sixth Circuit Reverses District Court’s Denial of Safety-Valve Relief

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit reversed the judgment of a district court that denied safety-valve relief under U.S.S.G. §§ 5C1.2 and 2D1.1(b)(17) to Nestor Barron.

In July of 2017, law enforcement officers executed a search warrant at the residence of Lara Salas in ...

Tennessee Supreme Court Reverses Conviction Because Trial Court Refused to Give ‘Necessity’ Jury Instruction Because Defendant Never Testified About Mental State

by Douglas Ankney

The Supreme Court of Tennessee reversed Brandon Cole-Pugh’s conviction because the trial court refused to instruct the jury on the defense of necessity.

According to witness Michael Douglas, while Cole-Pugh was inside The Gold Line Market, he saw that a Ms. Thomas was arguing with two men. ...

New York Court of Appeals Overturns Murder Conviction, Finds Prosecutor Withheld Critical Video Evidence in Violation of Brady Obligations

by Dale Chappell

The New York Court of Appeals overturned a murder conviction on postconviction review, finding that the State’s failure to provide surveillance video of the crime coupled with telling the jury that no video of the crime exists during closing argument undermine confidence in the verdict, and thus, ...

Seventh Circuit Holds Indiana Pointing a Firearm and Intimidation Convictions No Longer Qualify Under ACCA After Johnson

by Dale Chappell

The U.S. Court of Appeals for the Seventh Circuit held on October 18, 2019, that a prior conviction for intimidation in Indiana could not qualify for the harsh mandatory penalty under the Armed Career Criminal Act (“ACCA”), remanding for resentencing without the penalty.

When Daniel Portee was ...

Asset Forfeiture Not So Helpful to Crime-Fighting

by Ed Lyon

The two supreme governmental systems in the U.S. are the overall federal government and the lesser, yet still quite powerful 50 state governments. The federal Constitution and its amendments delineate certain powers exclusive to the federal government while limiting some of its powers and ceding all other ...

National Fingerprint Database Frees Man After 36 Years

by Jayson Hawkins

Archie Williams seemed doomed to die in prison. Sentenced to life without parole for a 1982 stabbing and rape, he managed to survive in Louisiana’s Angola as months bled into years, and years pooled into decades. Where others may have lost hope, Williams clung to one forlorn ...

News in Brief

California: The city of Citrus Heights, California, must pay a $1.2 million settlement in a case of police torture that evolved from a mental health episode in June 2017, blackmainstreet.net reports. That’s when police pinned Stockton resident James Bradford Nelson III, a young shirtless man who was handcuffed, to ...

 

 

Prison Phone Justice Campaign
Advertise here
Disciplinary Self-Help Litigation Manual Side