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The Habeas Citebook: Prosecutorial Misconduct

Criminal Legal News: October, 2020

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Volume 3, Number 10

In this issue:

  1. The Junk Science Cops Use to Decide You’re Lying (p 1)
  2. California Court of Appeal Grants Habeas Relief Over Failure to Instruct Jury on ‘Heat of Passion’ (p 8)
  3. From the Editors (p 8)
  4. Attacking the Guilty Plea: The Art of Withdrawing a Guilty Plea (p 10)
  5. Fourth Circuit: Releasee Under First Step Act Can’t ‘Bank’ Extra Time Spent in Prison Toward Future Supervised Release Violation (p 12)
  6. New Hampshire Supreme Court Announces Defendant Not Required to Identify Evidentiary Support for Noticed Defense (p 13)
  7. Sixth Circuit Reverses District Court’s Grant of Summary Judgment to Defendants in § 1983 Suit Against City and Police Officers (p 14)
  8. Ninth Circuit Clarifies Use of Rule 60(b) for Changes in Law (p 16)
  9. Nebraska Supreme Court Announces Remand for New Sentencing Hearing Appropriate Remedy for Enhanced Vehicular Homicide Sentence Without Evidence of Prior Convictions (p 17)
  10. Study Exposes Public Defender Plea Negotiation Practices and Suggests New Negotiation Theory (p 18)
  11. Colorado Supreme Court Announces New Rules for Awarding Presentencing Credit (p 20)
  12. Government Agencies Expand Use of Private Companies to Bypass Constitution (p 21)
  13. California Supreme Court Announces New Time Limit for Habeas ‘Appeal’ Stages, Clarifying Tolling for Federal Habeas Petitioners (p 22)
  14. Defense Officials: Law Enforcement in Military Garb not Appropriate (p 23)
  15. Justice Sotomayor Raises Due Process Concerns Over Eleventh Circuit’s Use of Published Successive Habeas Denial Orders (p 24)
  16. South Carolina Supreme Court: Failure to Give Logan Instruction Not Harmless Error Where Evidence Almost Entirely Circumstantial (p 24)
  17. Seventh Circuit: District Court Abused Discretion by Denying Relief Without First Considering Recalculations Under First Step Act (p 26)
  18. Colorado Supreme Court: Prosecution Prohibited From Arguing Defendant’s Failure to Retreat Showed Lack of Fear, Undermining Claim of Self-Defense (p 26)
  19. Arizona Supreme Court Announces Cumulative Error Framework for Reviewing Multiple Instances of Prosecutorial Misconduct (p 28)
  20. California Supreme Court Vacates LWOP Sentence After Its Recent Cases Clarifying ‘Special Circumstance’ Murder (p 28)
  21. Seventh Circuit: Sentences for ‘Non-Covered’ Offenses Can Also Be Reduced Under First Step Act (p 30)
  22. Indiana Supreme Court: Must Be Immediate Causal Connection Between Confrontation and Other Crime by Defendant to Negate Self-Defense (p 30)
  23. Interactions Between Diabetics and Law Enforcement Can Become Life-Threatening (p 33)
  24. SCOTUS ‘Shadow Docket’ Secretly Pushes Agendas, Issues Major Rulings Without Argument or Public Knowledge (p 34)
  25. North Carolina Supreme Court: Defendant Can’t Be Convicted of Both Habitual Misdemeanor Assault and Felony Assault for Same Act (p 36)
  26. Medical Experts Publish Guidelines on SUDC (p 37)
  27. Successful Alternatives to Armed Police Response (p 38)
  28. SCOTUS Goes Live on Camera (p 40)
  29. Maryland Court of Appeals Announces Reasonableness Standard in Providing Advice of Rights to Non-English Speaking Drivers (p 40)
  30. Seventh Circuit: Rehaif Creates Defense and Invalidates Defendant’s Guilty Plea (p 41)
  31. New Jersey Supreme Court: Juror Excused After Partial Verdict Requires Mistrial on Remaining Counts (p 42)
  32. Chicago’s Police Torture Reparations (p 42)
  33. How COVID-19 Forces New Releasees Into ‘Survival Mode’ (p 43)
  34. Policing and Racial Bias (p 43)
  35. New Colorado Law Kills Qualified Immunity for Cops (p 44)
  36. From Detroit: How Not to Use Facial Recognition in Policing (p 44)
  37. Minnesota Cops Use Contact Tracing to Track Protestor Networks (p 45)
  38. When Police Caught Lying, the Spin Begins (p 45)
  39. Risk Assessment Tools Perpetuate Inherent Biases and Prejudices (p 46)
  40. Minneapolis: Use of Force Against Blacks 7 Times Higher Than That for Whites (p 46)
  41. New York Police Act With Impunity During Protests (p 47)
  42. New ‘Barcode’ System Puts DNA Sample to the Authenticity Test (p 47)
  43. Police Unions Buy Their Way Out of Reform (p 48)
  44. Police Violence and the 14th Amendment (p 48)
  45. Protecting Your Phone at Protests (p 50)
  46. News in Brief (p 50)

The Junk Science Cops Use to Decide You’re Lying

Leaked documents detail law enforcement trainings in lie detection techniques that have been discredited by scientists.

by Jordan Smith, The Intercept

The article was originally published on August 12, 2020, and is republished with permission from The Intercept, an award-winning nonprofit news organization dedicated to holding the powerful accountable through fearless, adversarial journalism. Sign up for The Intercept’s Newsletter.

The training session was billed as “cutting edge,” and dozens of law enforcement professionals signed up to learn about “New Tools for Detecting Deception” from a human lie detector who calls herself “Eyes for Lies.” Her real name is Renee Ellory, and she claims that she’s one of just 50 people identified by scientists as having the ability to spot deception “with exceptional accuracy.”

A flyer for the event, hosted by Wisconsin’s High Intensity Drug Trafficking Area — a federal program that supports law enforcement drug interdiction work — was included among a trove of law enforcement documents that were hacked and posted online in June under the title BlueLeaks. The promo copy leans heavily into Ellory’s skill at ferreting out deception in others. She is “exceptional at pinpointing a liar and can tell you why she doesn’t trust someone ...

California Court of Appeal Grants Habeas Relief Over Failure to Instruct Jury on ‘Heat of Passion’

Jonathan Hampton filed his appeals and at least two habeas corpus petitions in state court after his 2009 conviction for second-degree murder. He was found guilty by a jury of shooting and killing someone during a drug deal gone bad. While the facts of how the shooting happened were unclear, Hampton testified at his trial that he was trying to escape from a man holding a gun to his head who was robbing him. He said when the gun landed in his lap and the man lunged for him, he shot him “without thinking.” He feared for his life, he said.

Instead of first-degree murder, the jury found him guilty of second-degree murder. The issue in Hampton’s third habeas petition was whether his appellate lawyer was ineffective for failing to challenge that the trial court was required to give the jury a “heat of passion” instruction, which could have allowed a conviction for ...

From the Editors

We at the Human Rights Defense Center are saddened to announce the passing of our dear friend Kent Alan Russell on August 9, 2020. Many readers know him as the author of the California Habeas Handbook and California’s leading expert on habeas corpus. In addition, he provided invaluable assistance to our readers via his Habeas Hints column that appeared regularly in Criminal Legal News.

Kent passed away peacefully surrounded by his son Kane, daughters Blaire and Chandra, sons-in-law Arvind and Abe, and six grandchildren. Kent’s wife of 37 years, Pamela, and parents, Arthur and Zina, preceded him in death.

Kent was born in New York, New York, in 1947. His younger brother Lance came three years later, and the two would share a passion for singing and songwriting. A reserved elementary and high school student, Kent came out of his shell while attending Princeton University from 1964 to 1968. Bonding over the Beatles and Dylan, he and three classmates formed the rock bank Us4, playing gigs throughout New England.

After his days at Princeton, Kent attended the University of California, Berkeley School of Law, where he served as an editor on the California Law Review, grew out his ...

Attacking the Guilty Plea: The Art of Withdrawing a Guilty Plea

by Dale Chappell

The art of withdrawing a guilty plea comes down to which phase of the criminal proceeding the guilty plea is at when the motion to withdraw is filed. The phases are: (1) prior to it being accepted by the court, (2) after acceptance but before sentencing, and (3) after sentencing. Each phase requires meeting a different standard in order to withdraw a guilty plea. So far, the columns in this series have described challenges to a guilty plea after sentencing in the post-conviction setting. While that’s the most common arena for prisoners, an understanding of the other two phases will help support a later challenge to a guilty plea by asserting an ineffective assistance of counsel (“IAC”) claim with respect to a guilty plea.

The rule for everything relating to a guilty plea, from entering one to withdrawing one, is found in Federal Rule of Criminal Procedure 11. A “research alert” (as I call it) to be aware of is that withdrawing a guilty plea was also previously governed by Criminal Rule 32(e), but everything was moved to Rule 11, when that rule was amended in 2002 in significant ways. So check the dates of the cases ...

Fourth Circuit: Releasee Under First Step Act Can’t ‘Bank’ Extra Time Spent in Prison Toward Future Supervised Release Violation

While the Court’s decision wasn’t a “win” for the prisoner, it provides a glimpse into the Court’s reasoning of how it treats prisoners immediately released who have served too much time in prison.

Ronald Jackson was not the first prisoner released under a change in the law who had spent more time in prison than he should have, but his case was used by the Fourth Circuit to explain its position on what to do with the extra time such prisoners spent in prison when imposing a “time-served” sentence to allow release. Jackson was sentenced 15 years ago for conspiracy to distribute more than 50 grams of crack. Because he had a prior drug conviction, the Government filed a notice requiring the court to impose at least 20 years in federal prison without parole.

Jackson filed a motion in 2019 under the First Step Act that retroactively applied the Fair Sentencing Act ...

New Hampshire Supreme Court Announces Defendant Not Required to Identify Evidentiary Support for Noticed Defense

Michael Munroe was a prisoner at the Rockingham County House of Corrections when he became involved in a fight with another prisoner identified as W.V. Munroe was charged with assault by a prisoner. Prior to trial, he filed a Notice of Self Defense and Notice of Competing Harms (“Notice”). The Notice stated that pursuant to RSA 627:4, Munroe “may rely on the defense of self defense.” His stated grounds for the notice were basically a recitation of the facts, some of which included that he stood accused of felony-level assault by a prisoner; that the State alleged he had caused serious bodily injury to W.V. by punching him at a time when Munroe was in custody; and that at a prison disciplinary hearing W.V. pleaded guilty to the charge of fighting.

The State objected to the Notice, arguing that Munroe wasn’t “entitled to argue self-defense as a matter of law based upon the offer of proof as contained within the [Notice].” According to the State, the Notice was deficient ...

Sixth Circuit Reverses District Court’s Grant of Summary Judgment to Defendants in § 1983 Suit Against City and Police Officers

After observing Lamar Wright pull into the driveway of a suspected drug dealer and then leave, Flagg and Williams followed him in an unmarked car. Wright pulled into another residential driveway. Flagg and Williams approached Wright with guns drawn. Williams shouted to Wright, commanding him to turn off his engine and exit his SUV. Wright placed the SUV in park and raised his hands. The officers holstered their guns.

Flagg jerked the driver’s side door open and grabbed Wright’s left arm, twisting it around behind him. Flagg then attempted to grab Wright’s right arm in order to handcuff him. Unable to secure the right arm, Flagg began pulling Wright from the vehicle. Wright had a colostomy bag stapled to his abdomen as the result of a recent surgery. In order to assist Flagg, Wright placed his right hand on the center console for leverage to enable him ...

Ninth Circuit Clarifies Use of Rule 60(b) for Changes in Law

The U.S. Court of Appeals for the Ninth Circuit has clarified when Federal Rule of Civil Procedure 60(b) may be used to reopen a federal habeas corpus case due to a change in the law that was relied on to deny relief. The split decision was handed down July 24, 2020, and once again expands the use of Rule 60 in the Ninth Circuit.

Michael Bynoe challenged his Nevada State conviction under federal habeas corpus in 2007, but his petition was dismissed before it ever got started. The district court ruled that he failed to exhaust his state postconviction remedies before filing in federal court and dismissed his petition. He asked the court to “stay” (put on hold) his petition while he went back to state court to exhaust his remedies, but the court refused. The court said the law required it to dismiss any petition with claims that were never raised in state court.

But several years later, that law changed, and Bynoe filed ...

Nebraska Supreme Court Announces Remand for New Sentencing Hearing Appropriate Remedy for Enhanced Vehicular Homicide Sentence Without Evidence of Prior Convictions

After leaving a party where he had consumed a substantial amount of alcohol, José A. Valdez struck another vehicle with his automobile. The driver of the other vehicle died from her injuries, and Valdez was charged with motor vehicle homicide. A blood test revealed that Valdez had .223 grams of alcohol per 100 milliliters of blood. The State alleged that Valdez had prior convictions for driving under the influence (“DUI”) and operating a motor vehicle during a revocation period—either of which would enhance the motor vehicle homicide offense to a Class II felony.

Valdez pleaded guilty to the offense, and the State agreed to recommend a sentence not to exceed 25 years and not to pursue additional charges or restitution.

The district court accepted his plea, and the parties agreed to address the issue of enhancement at a later sentencing hearing. At that hearing, the court considered the offense to be enhanced ...

Study Exposes Public Defender Plea Negotiation Practices and Suggests New Negotiation Theory

A major tenet of negotiation theory is the claim that attorneys bargain in the “shadow of trial,” which focuses on the possible outcomes of a trial and sentencing. The study’s authors found that many attorneys operate in what the authors call the “shadow of the client” theory. Attorneys who operate in that shadow focus on the wants and needs of the client.

Over 90% of criminal cases are resolved through a plea bargain. The study under review here is the first look into the “nuts and bolts of plea bargaining.” It provides great insight into how attorneys prepare to bargain, and the priorities and backgrounds that lead attorneys to operate in one of the so-called shadows. It also tested the attorneys’ self-declared negotiation goals against their actual practices.

The authors — Ronald F. Wright, Jenny Roberts, and Betina Wilkenson — began by ...

Colorado Supreme Court Announces New Rules for Awarding Presentencing Credit

Derick Wayne Russell was in community confinement following unrelated convictions in Jefferson County and Douglas County, Colorado, in December 2015 and January 2016, respectively. He was terminated from the program for a violation and taken into custody on May 26. On June 1, Jefferson County sentenced him to three years’ imprisonment, to run concurrently with his Douglas County sentence. Douglas County sentenced him on October 13 to six years’ imprisonment, also to run concurrently with his Jefferson County sentence.

At sentencing in Douglas County, the district court calculated his PSCC time, awarding him PSCC for time spent confined prior to his sentence to community corrections, the time he served in residential community corrections, and the days he spent in custody prior to his resentencing in Jefferson County. The court denied him PSCC for the period between June 1 and October 13 because, under the but-for causation test articulated in People v. Torrez, 403 P.3d 189 (Colo. 2017), he could not be awarded this time since ...

Government Agencies Expand Use of Private Companies to Bypass Constitution

U.S. Customs and Border Protection (“CBP”) knows about it and reportedly uses its database to conduct warrantless surveillance. CBP admitted that it uses the database in CBP’s updated Privacy Impact Assessment (“PIA”). The PIA states the database “provide[s] CBP law enforcement personnel with a broader ability to search license plates nationwide.”

LEARN (the Law Enforcement Archival Reporting Network) is a license plate reader innovation that allows for the collection of plate information of passing vehicles. With this information, CBP tracks historical locations of specific cars. Often other vehicles are equipped with license plate reader cameras and collect data on passing cars.

Vigilant’s sister company, DRN, claims to have over nine billion scans in its database. DRN shares all of its information with Vigilant customers.

It is virtually impossible to avoid such a dragnet. In April, a man was convicted of dealing heroin in Massachusetts. The state used historical location evidence caught by a reader near a bridge. The Massachusetts Supreme Judicial Court affirmed the conviction.

Justice Frank M. Gaziano did warn, “Where the [automated license plate readers] are placed matters…. ALPRs ...

California Supreme Court Announces New Time Limit for Habeas ‘Appeal’ Stages, Clarifying Tolling for Federal Habeas Petitioners

Almost nine years ago, Julius Robinson filed a habeas corpus petition in a California superior court, challenging his indeterminate 205-years-to-life sentence for premeditated murder and gun charges. When the court denied his petition, Robinson filed a new petition in the California Court of Appeal, raising the same issues 66 days later. That court denied his petition, and he filed a new petition in the California Supreme Court, which was denied. When he filed a federal habeas petition in federal court under 28 U.S.C. § 2254, it was denied as untimely because he waited too long between the superior court denial and filing in the Court of Appeal – 66 days.

On appeal to the U.S. Court of Appeals for the Ninth Circuit, Robinson argued that the 66-day period was not too long, and this brought up an issue that has perplexed federal courts handling habeas petitions by California prisoners: “At what point ...

Defense Officials: Law Enforcement in Military Garb not Appropriate

U.S. Customs and Border Protection’s Border Patrol Tactical Unit (“BPTU”), its immediate response force, arrived in Portland to quell the destructive protests. Concerns were raised when video showed the BPTU agents were recorded wearing what appeared to be U.S. Army uniforms.

Secretary of Defense Mark Esper promptly raised his concerns about uniform misappropriation to the Trump administration. “The secretary has expressed a concern of this within the administration, that we want a system where people can tell the difference,” said Defense Department spokesman Jonathan Hoffman.

Hoffman addressed concerns as early as June about certain uniforms making agents of law enforcement appear to be military personnel.

Lawmakers began demanding answers after video footage and photographs of law enforcement appearing to wear Army camouflage while confronting protestors. Many officials refused to identify ...

Justice Sotomayor Raises Due Process Concerns Over Eleventh Circuit’s Use of Published Successive Habeas Denial Orders

In a statement regarding the denial of certiorari where published orders denying SOS applications were used to foreclose an argument on direct appeal, Sotomayor called the practice “troubling” and stated she’s concerned that it may violate due process. The case came before the Court as a direct appeal from the Eleventh Circuit, where Michael St. Hubert had challenged his 32-year sentence for brandishing a firearm during several robberies. He argued that Hobbs Act robbery, under 18 U.S.C. § 1951, isn’t a qualifying offense to allow the mandatory, harsh consecutive sentence under 18 U.S.C. § 924(c), use of a firearm during a crime of violence. The Eleventh Circuit rejected his appeal using two published orders denying SOS applications, which ruled — without any response from the government or briefing — that ...

South Carolina Supreme Court: Failure to Give Logan Instruction Not Harmless Error Where Evidence Almost Entirely Circumstantial

Robin Herndon was a law enforcement officer whose live-in boyfriend, Christopher Rowley, was diagnosed with bipolar disorder and placed on medication because of his mood swings, aggression, and uncontrolled anger. Witnesses testified that they saw Herndon and Rowley arguing in front of their home. The two then retreated into the residence.

According to Herndon, Rowley then punched her. She drew her service weapon and warned him to leave. Rowley charged at her, swatting the gun. She shot and killed him.

The pathologist testified that the bullet trajectory was consistent with two scenarios: (1) Herndon shot Rowley as he walked up the steps to the house or (2) Rowley was charging Herndon when he was shot. The State elected to try Herndon on a murder charge based on the first scenario.

At trial, Herndon specifically requested the charge set forth in Logan. The trial court refused, opting instead to “go with the charge that’s in ...

Seventh Circuit: District Court Abused Discretion by Denying Relief Without First Considering Recalculations Under First Step Act

Corner was originally convicted of violating 21 U.S.C. § 841 and later violated the conditions of his supervised release. For the violation, he was sentenced to 18 months’ imprisonment followed by 42 months of supervised release. Shortly after Corner was sentenced, Congress passed the Act that retroactively applied the provisions of the Fair Sentencing Act of 2010. (The Fair Sentencing Act reduced the statutory minimum penalties and increased the minimum amounts of crack cocaine necessary to trigger those penalties.) Corner filed a motion under 18 U.S.C. § 3582(c) seeking a reduction of his 18 months’ revocation term and his 42 months of supervised release.

At issue in this case was whether §404’s retroactive application of the Fair Sentencing Act would result in Corner’s statutory range being reduced from five to 40 years to 0 to 20 years.

The ...

Colorado Supreme Court: Prosecution Prohibited From Arguing Defendant’s Failure to Retreat Showed Lack of Fear, Undermining Claim of Self-Defense

Sheila Renee Monroe got into an argument with a man on a city bus. Monroe showed the man she had a pocket knife. The man said he was going to call police. The man claimed that after he removed his phone and was dialing, Monroe stabbed him in the neck. A witness testified that the man had his phone in his hand and “was opening his jacket” when Monroe stabbed him. Monroe was charged with first-degree assault and attempted first-degree murder.

At trial, Monroe claimed that she acted in self-defense when the victim reached into his pocket.

During closing argument, the prosecutor said Monroe “didn’t have any duty to retreat, but she does have a clear line of retreat, if she’s actually scared for her safety.” Defense counsel objected, arguing that this imposed a duty to retreat. The trial court overruled the objection.

Calling the jury’s attention to the ...

Arizona Supreme Court Announces Cumulative Error Framework for Reviewing Multiple Instances of Prosecutorial Misconduct

A jury found Luis Armando Vargas guilty of several offenses, including first-degree murder. On appeal, Vargas argued that the prosecutor engaged in a “pervasive pattern of misconduct [that] cumulatively deprived [him] of his right to a fair trial.” Because trial counsel failed to object to the alleged misconduct, appellate counsel argued that the Court of Appeals should review the claim for fundamental error. Counsel supported this claim with 11 instances of alleged misconduct.

For all but three of the alleged instances of misconduct, the Court of Appeals concluded the argument waived because Vargas failed to set forth that each of those instances, by itself, was fundamental error. For each of these conclusions, the Court of Appeals relied on State v. Moreno-Medrano, 185 P.3d 135 (App. 2008). It concluded Vargas failed to establish cumulative error based on misconduct and affirmed. The Arizona Supreme Court accepted review.

The Court observed that Arizona Rule of Criminal Procedure 31.10(a)(7) sets out the procedure for properly raising and developing ...

California Supreme Court Vacates LWOP Sentence After Its Recent Cases Clarifying ‘Special Circumstance’ Murder

A decade ago, a jury convicted Willie Scoggins of first-degree murder and robbery and further found that a “special circumstance” applied to allow the Sacramento County Superior Court to impose a LWOP sentence. That special circumstance was that he was a major participant in the crime and that he should have known an accomplice had a propensity for violence and would have used a gun, even though Scoggins didn’t plan for the robbery to be armed. He exhausted all of his appeals and filed numerous habeas corpus petitions, all without any success.

But in 2016, Scoggins filed a habeas petition again challenging the special circumstance finding, after the California Supreme Court decided People v. Clark, 372 P.3d 811 (Cal. 2016). In Clark, the Supreme Court ruled that “the mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life,” ...

Seventh Circuit: Sentences for ‘Non-Covered’ Offenses Can Also Be Reduced Under First Step Act

The U.S. Court of Appeals for the Seventh Circuit ruled on July 22, 2020, that when a “covered offense” under the First Step Act is reduced, a non-covered offense may also be reduced to achieve the purposes of sentencing, reiterating that any covered offense allows a court to apply the First Step Act to an entire case.

When three separate cases filed under the First Step Act came before federal district courts in Illinois, those courts refused to lower the overall sentences, either because a non-covered offense under the First Step Act had the same lengthy sentence or because the corrected sentence would have remained within the original Guidelines sentencing range (“GSR”). On appeal, all three were vacated and remanded when the Seventh Circuit ruled that the district courts had the authority to reduce those sentences for all the counts.

De Novo Review

The first point the Court made was that its review on appeal was de novo, meaning it reviewed the district courts’ reasoning without any deference to those decisions. This meant that it wasn’t whether the district courts abused their discretion denying relief under the First Step Act but whether the district courts improperly ...

Indiana Supreme Court: Must Be Immediate Causal Connection Between Confrontation and Other Crime by Defendant to Negate Self-Defense

Anthony Gammons, Jr. and his 10-year-old son stopped by the house of Gammons’ cousin. Gammons was immediately accosted by Derek Gilbert. Gammons knew that Gilbert liked to get drunk, fight, rob, and shoot at people. He also knew that Gilbert had previously been charged with murder. Even though Gammons was openly carrying a handgun, Gilbert squared up as if to punch Gammons, pulling at his waistband and asking if Gammons was “casket ready.”

Gammons later testified that he shot at Gilbert eight times because he feared for his life and the life of his son. But as soon as Gilbert retreated and ran away, Gammons stopped firing. Gilbert survived, and Gammons was charged with attempted murder.

At trial, Gammons conceded he was carrying the handgun without a license. Gammons requested that the court instruct the jury that he was “justified in using deadly ...

Interactions Between Diabetics and Law Enforcement Can Become Life-Threatening

The health of diabetics depends on uninterrupted access to insulin, snacks, pumps, glucose testing strips, or syringes on a near constant basis. If a diabetic experiences unbalanced blood sugar levels, he or she may struggle to process commands, possibly becoming erratic or aggressive.

“A decent chunk of ‘use of force’ cases involve people who ... were in some kind of physical or mental health crisis,” said Matthew Segal, legal director of ACLU Massachusetts. He added, “It’s very common for the police to deal very harshly with people who simply need help.” This issue is neither new nor infrequent.

In 1984, Dethorne Graham, a diabetic who is Black, entered a store to get juice to raise his ...

SCOTUS ‘Shadow Docket’ Secretly Pushes Agendas, Issues Major Rulings Without Argument or Public Knowledge

 by Dale Chappell

For the first time since 1862, the U.S. Supreme Court has decided a record low number of regular-docket cases – just 52. But that doesn’t mean the highest court in the land wasn’t busy. In fact, it was busier than ever, handing down decisions under the cover of night (sometimes literally) and without any public knowledge or input.

It’s what University of Chicago law professor Will Baud calls the Court’s “shadow docket,” and these aren’t cases left over from an earlier term or from the Court’s normal docket. Instead, these are cases where the Court barely gets any briefing from the parties (and usually the government is a party) and never hears oral argument. Often the decisions are only a sentence long, but their impact is great.

It’s true that the Court decides thousands of cases outside it’s normal “merits docket,” i.e., the docket that the public knows about, and they’re often unimportant decisions. But some cases are groundbreaking. Consider this fact. During the weeks between the beginning of July and the first week of August, Slate.com reports that the Court handed down the following big decisions without any fanfare:

• It paved the way for the ...

North Carolina Supreme Court: Defendant Can’t Be Convicted of Both Habitual Misdemeanor Assault and Felony Assault for Same Act

In November 2015, Fields and A.R. — a transgender woman — engaged in consensual sex. Afterward, while they were bathing, Fields seized A.R. by the hair, roughly grabbed and squeezed her genitals, and slammed her to the floor. As a result, A.R. needed 15 stitches to close the wound to her scrotum.

A jury convicted Fields of both misdemeanor assault and felony assault for his attack on A.R. Because Fields had stipulated to two prior misdemeanor assault convictions within the past 15 years, the superior court imposed a sentence of nine to 20 months for habitual misdemeanor assault and a consecutive sentence of 19 to 32 months for the felony assault. Fields appealed, arguing, inter alia, that he could not be convicted of both habitual misdemeanor assault and felony assault for the same act. The Court of Appeals agreed with Fields and vacated his habitual misdemeanor assault conviction. The North Carolina Supreme Court granted the State’s petition for discretionary review.

The Court observed that N.C.G.S. § 14-33(c)(1) (2019) (“misdemeanor ...

Medical Experts Publish Guidelines on SUDC

Unlike Sudden Infant Death Syndrome (“SIDS”), SUDC is the listed cause of death when a child age 12 months or older dies and the death cannot be explained after investigation and autopsy. And, unlike SIDS, SUDC is not usually part of the educational instruction received by pediatricians nor is it something medical examiners evaluate often enough to reach a comprehensive understanding.

The SUDC Foundation (“Foundation”) is the single organization dedicated to promoting research into SUDC. A grant from the Foundation paid for the development and publication of the first national consensus guidelines for SUDC.

“Unexplained Pediatric Deaths: Investigation, Certification, and Family Needs” was published in January 2020 by a panel of experts from over 30 contributors. The experts are from multiple disciplines, including medical examiners, pediatricians, and federal agency experts in fields such as death investigation, autopsy performance, neurology, child abuse, and many others.

A Canadian neuropathologist described the book as “amazing” and said, “Finally, practicing forensic pathologists have practice recommendations to follow, and achieve when ...

Successful Alternatives to Armed Police Response

Barry Friedman runs New York University’s Policing Project. He points out that police officers are molded from a “one-size-fits-all-model. Police just aren’t trained to do a lot of the things they end up doing. They are trained for force and law. So you get force-and-law results.” The old saying “when you’re a hammer everything looks like a nail” is particularly apt with respect to cops, so some forward-thinking municipalities around the country have stopped sending hammers to every type of emergency service call with unsurprisingly positive results.  

Currently, activists across the country ...

SCOTUS Goes Live on Camera

For the first time in its history, the Supreme Court heard oral arguments over a conference call in May 2020. Ten arguments involving 13 cases were scheduled over six days. The measure was deemed necessary for the Supreme Court to continue to function amid the pandemic, as the majority of the justices are considered especially vulnerable to the coronavirus because of age and/or underlying medical issues.

Perhaps more significant than the justices working from home was that the proceedings were broadcast live to the general public, which had never been done before. On 27 prior occasions, the Supreme Court had allowed audio recordings of arguments to be released on the day they occurred, but the only way to follow the proceedings in real time was to attend in person. The Supreme Court has always been a public institution, but the necessity of having to be in Washington, D.C., early enough to get in line for ...

Maryland Court of Appeals Announces Reasonableness Standard in Providing Advice of Rights to Non-English Speaking Drivers

Before the Court was a petition for writ of certiorari filed by Walter Elenils Portillo Funes (Portillo), who was found guilty by a jury of driving under the influence of alcohol, driving while impaired by alcohol, and driving while under the influence of alcohol per se.

The charges stemmed from an October 14, 2018, incident in which Montgomery County Police Officer Devon Sharkey saw a pickup truck stopped in the right-most lane of a road. Portillo was in the running truck “slumped over the wheel, apparently not awake.”

An open can of beer was in the console, and Portillo gave off “a consistent strong odor of alcohol beverage” and had “bloodshot watery eyes.” It soon became apparent English was not Portillo’s primary language. An interpreter was not available. Portillo failed a field sobriety test.

At the police station before conducting a chemical breath ...

Seventh Circuit: Rehaif Creates Defense and Invalidates Defendant’s Guilty Plea

Robert Triggs was indicted in May 2016 under 18 U.S.C. § 922(g)(9), which prohibits firearm possession by persons convicted of a misdemeanor crime of domestic violence, by a federal grand jury. That conviction stemmed from a 2008 misdemeanor battery conviction that arose from a dispute with his girlfriend.

The weapons charge resulted from a home weapons check by Tomah, Wisconsin, that police conducted after Triggs’ son and other students made violent social media threats against a teacher. Police found three hunting rifles in the living room of Triggs’ home. He moved to dismiss the indictment, raising an as-applied Second Amendment challenge to the prosecution. He principally argued the predicate conviction was more than 10 years old, but he also asserted mitigating circumstances such as his personal characteristics.

The judge denied the motion. Triggs entered a guilty plea, reserving the right to appeal the Second Amendment issue. He was sentenced to 18 months’ probation. On appeal, he raised ...

New Jersey Supreme Court: Juror Excused After Partial Verdict Requires Mistrial on Remaining Counts

The case came before the Court when Antwan Horton took his charges for murder, attempted murder, and weapons offenses to trial, and one of the jurors was excused to go on a preplanned vacation. That juror had been part of the deliberations when the jury reached a verdict on some of the counts.

Instead of accepting the partial verdict, the trial judge merely excused the juror and then reconstituted a new jury to take over and reach a full verdict. The judge instructed the jury to discard the partial verdict and begin deliberations anew. Horton moved for a mistrial, but the trial court denied that motion. Three days later, he was found guilty by a unanimous jury of all the counts.

On appeal, the Appellate Division affirmed, speculating that the substituted juror was a “full participant in the mutual exchange of ideas.” The court cited ...

Chicago’s Police Torture Reparations

The story of police torture in Chicago begins with Jon Burge. In 1972, Burge returned to his job as a detective on the South Side of Chicago after serving a tour as an interrogator in Vietnam.

The brutal techniques he had learned in Southeast Asia—electric shock, suffocation, beating the genitals with a rubber hose—were applied to hundreds of victims, almost all of whom were people of color. Burge obtained countless confessions that sent these victims to prison and even death row. For 20 years, authorities in the police, judiciary, and mayor’s office looked the other way as Burge’s hand-picked crew of officers terrorized the South Side, and Burge himself was rewarded with promotions and commendations.

This reign of terror began to come under fire in 1989 when one of the victims of Burge’s crew brought their behavior to light during a civil ...

How COVID-19 Forces New Releasees Into ‘Survival Mode’

“I’ve just had to put myself into survival mode,” one releasee in New Jersey, who wished to remain anonymous, told The Intercept. Without a government ID, he took a job as a food delivery driver for Uber Eats – without having a driver’s license. This is because just as he was released from prison the state closed down all driver’s license offices during the pandemic. He had no way of getting a state ID from the driver’s license office. After being pulled over by a sympathetic cop who didn’t take him back to jail, he now makes deliveries by bike.

Former prisoners already face major roadblocks to basic necessities like jobs, housing, and healthcare. And those thrown in jail or prison are usually already poor to being with. After years locked up, they typically come out even poorer. Yet they’re ...

Policing and Racial Bias

Researchers Rebecca Hetey and Jennifer Eberhardt reported in 2018 that evidence is sufficient to establish that racial bias exists in the criminal justice system. Blacks are more apt to be arrested, convicted and sentenced to more time than Whites.

The Association for Psychological Science (“APS”) July/August Observer reports that Heather Kleider-Offutt, Alesha Bond, and Shanna Hagerty went further to say that this racial bias is even more pronounced if the person’s features are more Afrocentric, i.e. darker skin, wide nose, big lips, etc. They report these racial responses may be more automatic than conscious and therefore completely unavoidable.

Writing in Current Directions in Psychological Science, APS Fellow Keith Payne found that if a subject were to make a decision about potential firearms in conjunction ...

New Colorado Law Kills Qualified Immunity for Cops

As part of a police reform bill introduced by Colorado Governor Jared Polis, called “Enhance Law Enforcement Integrity Act,” the new law says “qualified immunity is not a defense to liability pursuant to this section.” It also bans chokeholds, limits when police can shoot at fleeing suspects, and requires police to use body cameras and make the footage available to the public.

Qualified immunity, a hot topic lately, is a commonly used affirmative defense protecting law enforcement from lawsuits arising from alleged civil rights violations by officers committed in the line of duty. It was created by the U.S. Supreme Court in Pierson v. Ray, 386 U.S. 547 (1967), where a group of men filed a federal civil rights lawsuit after they were arrested and convicted in Mississippi for ...

From Detroit: How Not to Use Facial Recognition in Policing

In January 2020, Robert Julian-Borchak Williams was working at an automotive supply company when he received what he thought was a prank phone call directing him to turn himself into the Detroit P.D. When he arrived home from work, he quickly learned it was not a prank, as he was handcuffed before his wife and two daughters.

He was booked Thursday afternoon, which included a mugshot, fingerprinting, and DNA sampling.

Around noon the next day, during his interrogation, he was shown a blurry photo from a security camera taken at a Shinola store where five timepieces worth $3,800 total were shoplifted in October 2018.

“Is this you?” asked one detective.

The second photo, a close-up of the first, also was on the table. Williams held it up to his face to contrast how much it definitely did not look like him.

“No, this is not me,” said Williams. “You think all Black men look alike?”

Williams turned over another paper on the table, which revealed a photo of the suspect ...

Minnesota Cops Use Contact Tracing to Track Protestor Networks

According to Minnesota Public Safety Commissioner John Harrington, officials in the state have been using contact-tracing to map protestor affiliations and movements. This has led officials to conclude that much of the protest activity is being fueled by people from the “outside coming in.” Harrington was circumspect about which apps or processes commonly used for contact-tracing are now being used against protestors, though a Twitter feed titled “Minnesota Contact Tracing,” which has been leaking police activities, did specify that officials are contact-tracing arrestees.

This is just the latest tool of big tech to be deployed against law-abiding citizens. Minneapolis Police and the Minnesota Fusion Center have also been employing other well-known tech to track citizens. Briefcam, Ring doorbell cameras, Axon police bodycams, ShotSpotter, and license plate readers collect hundreds of thousands of hours of video footage that is analyzed by software such as Clearview AI to identify individuals through facial recognition algorithms.

CCTV footage is also now being fed through Arxys Milestone software, which uses “video motion detection” and “video analytics” to ...

When Police Caught Lying, the Spin Begins

Many police officers have become the opposite of what they were meant to be. Even when caught on video committing atrocities against the citizens they swore to protect, they downplay and even get away with the evil they have done by lying and spinning the facts.

Take for example Buffalo, New York, on June 4, 2020. In clear daylight, the city’s Emergency Response Team (“ERT”) marched toward peaceful protesters. Two ERT cops shoved an elderly man down with such force that when the victim’s head hit the ground an audible “thunk” is heard as blood runs from one ear. The ERT leaves him.

The cops tell the press he “tripped and fell.” The Lie.

Then a video of what happened appears on Facebook, YouTube, and Instagram. Uh oh: The Truth.

A Buffalo police captain explains the cops’ perspective was based on a camera ...

Risk Assessment Tools Perpetuate Inherent Biases and Prejudices

Most states view Kentucky as the best example of utilization of RA tools in the U.S. In 2011, it was the first state to implement the use of RA in deciding bail. According to a 2018 study, the number of people released pending trial at that time increased by 13%.

By 2016, more than half that gain disappeared. Laws changed and judges were given more leeway to ignore recommendations. No oversight existed on the use or rejection of RAs. Kentucky Center for Economic Policy research director Ashley Spalding said judges tended to ignore the results. “They’re overriding the findings of the risk assessment tool,” she said. “In practice, we’re seeing that it is often disregarded.”

A 2019 study showed that judges were more apt to ignore the recommendation for release of Blacks in the moderate risk category than Whites. “Judges see the moderate risk label, and for white defendants, moderate risk was interpreted as low risk, and for Black defendants, it was ...

Minneapolis: Use of Force Against Blacks 7 Times Higher Than That for Whites

Floyd was being arrested for allegedly using a counterfeit bill at a convenience store when one of the arresting police officers, Derek Chauvin, applied a controversial body pin by placing his knee on the back of Floyd’s neck for 8 minutes and 46 seconds. Floyd’s air passage was constricted from the technique, and Floyd died as a result. Chauvin was fired and charged with second-degree manslaughter and second-degree murder. Bowling Green State University criminologist Philip Stinson said, “In my experience, applying pressure to somebody’s neck in that fashion is always understood to be the application of deadly force.”

Stinson was also concerned that the three other police officers surrounding Chauvin did not attempt to intervene even though they knew they were being filmed, indicating that they had no problem with the excessive use of ...

New York Police Act With Impunity During Protests

Government watchdog organization Broadcastify, which allows citizens to listen in on police and emergency band radio broadcasts, aired police transmissions as protestors moved June 1 into the 77th Precinct of Brooklyn. A police officer can be heard yelling, “Shoot the motherfuckers.”

While another responded with, “Don’t put that over the air.” Human rights activists said this is just another example of a long pattern of violence without fear of repercussion that is prevalent in law enforcement. While being called to protect and serve the public, police are instead engaging in combat with protesters.

A group of New York public defenders issued this statement June 2: “The disturbing videos and reports of the violent attacks by NYPD on protestors and the media, while traumatizing to watch, are all too familiar to us. They mirror the stories we ...

New ‘Barcode’ System Puts DNA Sample to the Authenticity Test

Engineers from Duke University and NYU’s Tandon School of Engineering have demonstrated a method of adding a sample of artificially created genetic material to evidence, which will allow lab workers to match the samples processed in the lab. “If you think about conventional encryption techniques, like security for a smartphone, there’s usually a passcode that only one person knows, “said Mohamed Ibrahim, a system-on-chip designer at Intel Corp. and a Ph.D. graduate of Duke. “Our idea is to inject non-harmful material into genetic samples immediately when they are collected in the field that act as a similar password. This would ensure that the samples are authentic when they reach the processing stage.”

Most genetic identification is done using polymerase chain reaction (“PCR”), a technique for sequencing a few short sections of human DNA, which can be used to accurately identify the person who left biological material at the scene of a crime. The FBI has identified 13 sites on the human genome which, ...

Police Unions Buy Their Way Out of Reform

Federal contributions during the same period have totaled $47.3 million.

The Guardian asserts unions and police use spending as a tool to defeat reform measures. They strategically target and donate to key politicians who show a history of being against reform policies and enhancing police accountability. This type of spending has dramatically increased in the last 10 years, explaining why most reform bills have been defeated even in the face of all the high-profile police shootings.

Director of Stop LAPD Spying Hamid Khan said, “The power of their money runs very deep.” Government entities “have become rubber-stamp bodies in which police power is never challenged.”

Los Angeles unions alone have spent $64.8 million on campaign contributions to block reform. The Los Angeles County Professional Peace Officers Association stated in a letter to its 8,000 members that they need donations of at least $2 million more to be used in establishing “collaborative ...

Police Violence and the 14th Amendment

The 14th Amendment was one of several constitutional changes made in the wake of the Civil War. The necessity of guarantees outlined in the due process clause had become all too apparent in the Reconstruction South. The authors of the amendment reported to Congress that across the South orchestrated campaigns of violence and intimidation were being carried out against freed Blacks by White police officers. In the summer of 1866, for example, policemen were instrumental in leading organized attacks on Blacks that left hundreds dead. The conclusion of Congress, and the state legislatures that would ratify the amendment, was that without new constitutional guarantees, state and local governments in the South would not respect the lives or fundamental rights of Black citizens.

The amendment was duly ratified, and Congress enacted the Civil Rights Act of 1873, which encoded the amendment in Chapter 42
§ 1983 of the U.S. ...

Protecting Your Phone at Protests

* Be sure to set your phone to require a PIN or password. The courts have ruled that it doesn’t violate the constitution if the police force you to unlock your phone using your thumb, facial recognition, or other biometric. But police cannot compel you to reveal a password or PIN;

* Be sure to set your phone to require the PIN or password to unlock it before EACH use. After most phones are unlocked, they won’t require a PIN or password again until after a set time of inactivity. Unless the setting is changed to require a PIN or password before each use, anyone can access your information after you’ve unlocked it; ...

News in Brief

California: Marissa Cruz and Paea Tukuafu filed a civil rights lawsuit against the city of San Jose police in August 2020, claiming they were “battered and bruised” by cops and subject to unreasonable search and entry. The two were celebrating ahead of Cruz’s 22nd birthday at a Holiday Inn in May 2019 when a noise complaint against the couple turned into a beating, which was captured on body camera video and aired by ABC News. Officers asked the couple to lower the volume of their music. But things went south when officers asked for identification. “Both Santa Cruz and Tukuafu argued over the necessity of handing over their I.D. for a noise complaint, while police insisted that department protocol demands they identify everyone they come into contact with. Tukuafu eventually relented, but not before another three officers arrived,” legalreader.com reports. “After the couple ‘failed the officers’ ‘attitude test,’” the officers allegedly struck them with batons, tasers and ‘sponge rounds,’ according to the complaint. The couple was transported by ambulance to the hospital for evaluation of ‘serious’ injuries before being booked and spending the night in jail,” according to the complaint. Criminal charges were not filed.

Florida: Bodycam footage from the ...

 

 

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