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Criminal Legal News: October, 2020

Issue PDF
Volume 3, Number 10

In this issue:

  1. The Junk Science Cops Use to Decide You’re Lying (p 1)
  2. From the Editors (p 8)
  3. California Court of Appeal Grants Habeas Relief Over Failure to Instruct Jury on ‘Heat of Passion’ (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. California Supreme Court Vacates LWOP Sentence After Its Recent Cases Clarifying ‘Special Circumstance’ Murder (p 28)
  20. Arizona Supreme Court Announces Cumulative Error Framework for Reviewing Multiple Instances of Prosecutorial Misconduct (p 28)
  21. Indiana Supreme Court: Must Be Immediate Causal Connection Between Confrontation and Other Crime by Defendant to Negate Self-Defense (p 30)
  22. Seventh Circuit: Sentences for ‘Non-Covered’ Offenses Can Also Be Reduced Under First Step Act (p 30)
  23. Ninth Circuit: Police Violate Fourth Amendment Executing Administrative Warrant Where Primary Purpose Is Gathering Evidence for Criminal Investigation (p 32)
  24. Interactions Between Diabetics and Law Enforcement Can Become Life-Threatening (p 33)
  25. SCOTUS ‘Shadow Docket’ Secretly Pushes Agendas, Issues Major Rulings Without Argument or Public Knowledge (p 34)
  26. Fourth Circuit Grants ‘SOS’ § 2254 Petition Attacking Three-Decade-Old Murder Conviction Based on New Evidence (p 34)
  27. Washington Federal Court: Looking at Lock Phone Screen Requires Warrant (p 35)
  28. North Carolina Supreme Court: Defendant Can’t Be Convicted of Both Habitual Misdemeanor Assault and Felony Assault for Same Act (p 36)
  29. Michigan Supreme Court: Probation Compliance Check During Unlawfully Extended Probation Was Unauthorized Warrantless Search (p 36)
  30. Medical Experts Publish Guidelines on SUDC (p 37)
  31. Successful Alternatives to Armed Police Response (p 38)
  32. Tenth Circuit: District Court Plainly Erred in Giving Erroneous Constructive Possession of Firearm Instruction, Conviction Reversed (p 38)
  33. Second Circuit: District Court’s Failure to Offer Explanation for Its Sentence Constitutes Plain Error (p 39)
  34. SCOTUS Goes Live on Camera (p 40)
  35. Maryland Court of Appeals Announces Reasonableness Standard in Providing Advice of Rights to Non-English Speaking Drivers (p 40)
  36. Seventh Circuit: Rehaif Creates Defense and Invalidates Defendant’s Guilty Plea (p 41)
  37. Chicago’s Police Torture Reparations (p 42)
  38. New Jersey Supreme Court: Juror Excused After Partial Verdict Requires Mistrial on Remaining Counts (p 42)
  39. Policing and Racial Bias (p 43)
  40. How COVID-19 Forces New Releasees Into ‘Survival Mode’ (p 43)
  41. New Colorado Law Kills Qualified Immunity for Cops (p 44)
  42. From Detroit: How Not to Use Facial Recognition in Policing (p 44)
  43. Minnesota Cops Use Contact Tracing to Track Protestor Networks (p 45)
  44. When Police Caught Lying, the Spin Begins (p 45)
  45. Risk Assessment Tools Perpetuate Inherent Biases and Prejudices (p 46)
  46. Minneapolis: Use of Force Against Blacks 7 Times Higher Than That for Whites (p 46)
  47. New York Police Act With Impunity During Protests (p 47)
  48. New ‘Barcode’ System Puts DNA Sample to the Authenticity Test (p 47)
  49. Police Violence and the 14th Amendment (p 48)
  50. Police Unions Buy Their Way Out of Reform (p 48)
  51. News in Brief (p 50)
  52. Protecting Your Phone at Protests (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 ...

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 ...

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

Jonathan Hampton filed ...

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 ...

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

While the ...

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 ...

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

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 ...

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

After leaving ...

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

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, ...

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 ...

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

Almost nine ...

Defense Officials: Law Enforcement in Military Garb not Appropriate

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

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

Robin Herndon was a law ...

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

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

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

A decade ago, a jury ...

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, ...

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

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 ...

Ninth Circuit: Police Violate Fourth Amendment Executing Administrative Warrant Where Primary Purpose Is Gathering Evidence for Criminal Investigation

The U.S. Court of Appeals for the Ninth Circuit ruled that law enforcement officers violated the Fourth Amendment in executing an administrative warrant at a private residence where their “primary purpose” was to gather evidence in support of a criminal investigation.

In October 2017, the City of ...

Interactions Between Diabetics and Law Enforcement Can Become Life-Threatening

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 ...

Fourth Circuit Grants ‘SOS’ § 2254 Petition Attacking Three-Decade-Old Murder Conviction Based on New Evidence

The U.S. Court of Appeals for the Fourth Circuit granted permission for a state prisoner to file a second or successive (“SOS”) habeas corpus petition in the federal court to attack a three-decade-old murder conviction based on newly discovered evidence.

On August 23, 1985, a mother of ...

Washington Federal Court: Looking at Lock Phone Screen Requires Warrant

The U.S. District Court for the Western District of Washington in Seattle ruled that the FBI conducted an illegal search of a defendant’s phone by powering it on to inspect the lock screen, resulting in suppression of information obtained from the search.

Joseph Sam was arrested pursuant ...

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, ...

Michigan Supreme Court: Probation Compliance Check During Unlawfully Extended Probation Was Unauthorized Warrantless Search

The Supreme Court of Michigan ruled that a probation officer who found heroin during a compliance check after the probation had ended and then been unlawfully extended conducted an unauthorized warrantless search.

John D. Vandenpool was sentenced to two years of probation on June 24, 2013. On ...

Medical Experts Publish Guidelines on SUDC

Unlike Sudden Infant Death Syndrome (“SIDS”), SUDC is the listed cause of death when a child ...

Successful Alternatives to Armed Police Response

Tenth Circuit: District Court Plainly Erred in Giving Erroneous Constructive Possession of Firearm Instruction, Conviction Reversed

The U.S. Court of Appeals for the Tenth Circuit reversed Fernando Miguel Samora’s conviction for being a felon in possession of a firearm because the U.S. District Court for the District of Utah gave the jury an erroneous instruction on constructive possession.

In May 2017, Samora borrowed ...

Second Circuit: District Court’s Failure to Offer Explanation for Its Sentence Constitutes Plain Error

The U.S. Court of Appeals for the Second Circuit held that a district court’s failure to offer an explanation for its sentence was plain error in violation of 18 U.S.C. § 3553(c).

Gilberto Rosa pleaded guilty to conspiracy to commit wire fraud (Count One) and aggravated identity ...

SCOTUS Goes Live on Camera

For the first time in ...

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

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

Robert Triggs was indicted in May 2016 ...

Chicago’s Police Torture Reparations

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

Policing and Racial Bias

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

New Colorado Law Kills Qualified Immunity for Cops

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 ...

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. ...

When Police Caught Lying, the Spin Begins

Risk Assessment Tools Perpetuate Inherent Biases and Prejudices

Most states view Kentucky as the best example of utilization of RA ...

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

New York Police Act With Impunity During Protests

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

Engineers from Duke University and NYU’s Tandon School of Engineering have demonstrated a ...

Police Violence and the 14th Amendment

Police Unions Buy Their Way Out of Reform

Federal ...

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 ...

Protecting Your Phone at Protests

 

 

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