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Criminal Legal News: November, 2020

Issue PDF
Volume 3, Number 11

In this issue:

  1. Police Unions: Obstacles to Criminal Justice Reform and Police Accountability (p 1)
  2. Fourth Circuit Announces Discretionary Conditions of Supervision Must Be Orally Pronounced at Sentencing (p 12)
  3. Deal Presented by Kentucky Prosecutor Evidence of Effort to Smear Breonna Taylor (p 13)
  4. Attacking the Guilty Plea: Waivers, Breaches, and Getting More Time After a Successful Challenge (p 14)
  5. Pennsylvania Supreme Court Announces Reckless Prosecutorial Misconduct Constitutes Overreaching Sufficient to Trigger Double Jeopardy Protections (p 16)
  6. The 1971 Stanford Prison Experiment Showing Authoritarian Abuse Still Relevant Today (p 18)
  7. Powerful New Tool Reveals Federal Sentencing Problems (p 20)
  8. Campaign Zero Advocates for Police Accountability (p 22)
  9. Sixth Circuit Finds IAC for Failure to Raise ‘Clearly Foreshadowed’ Change in Law on Appeal (p 22)
  10. Ninth Circuit: Use of Unconvicted Conduct Too Dissimilar to Charged Offense Violates Due Process (p 24)
  11. Fifth Circuit Grants Habeas Relief Because Detective’s Testimony of Witness Identification of Defendant Violates Confrontation Clause (p 25)
  12. Indiana Supreme Court Announces New Analytical Framework for Review of Substantive Double Jeopardy, Overruling Richardson (p 26)
  13. Idaho Supreme Court Announces False Rape Allegations May Be Admitted Regardless of When Made (p 26)
  14. Federal Judge Criticizes Qualified Immunity and Challenges SCOTUS to Abolish It (p 28)
  15. Fifth Circuit Reverses Conviction Based on Prejudicial Prosecutorial Misconduct (p 29)
  16. Arizona Supreme Court Declares Gang-Association Statute Unconstitutional (p 29)
  17. Mississippi Supreme Court Vacates Capital Murder Conviction Obtained With Bite Mark Comparison Evidence (p 30)
  18. Eighth Circuit: Counsel Ineffective for Not Recognizing § 851 Enhancement Should Not Have Applied (p 30)
  19. First Circuit: Dangerousness of Machine Guns Not Justification for Above-Guidelines Sentence (p 31)
  20. Eleventh Circuit: Time Served Adjustment Is Mandatory Under Sentencing Guidelines Even After Booker (p 32)
  21. Kansas Supreme Court Announces Residual Clause of Law Prohibiting Knife Possession by Felons Unconstitutionally Vague (p 32)
  22. Maryland Court of Appeals: Odor of Marijuana Alone Doesn’t Provide Probable Cause to Arrest and Search Person (p 33)
  23. Ninth Circuit: Mere Passage of Time Doesn’t Attenuate Evidence From Initial Constitutional Violation (p 34)
  24. California Court of Appeal: ‘Violent Victim Rule’ Doesn’t Require Defendant to Have Had Knowledge of Victim’s Propensity for Violence (p 34)
  25. N.J. Supreme Court Announces Defendant Has Right to Question Cooperating Witness About Plea Deal and Possible Sentence Exposure Even When Witness Faced Same Exposure as Defendant (p 35)
  26. Missouri Supreme Court: Circuit Court Erred in Excluding Expert Witness Testimony Regarding Accuracy of Eyewitness Identification (p 36)
  27. Seventh Circuit: Solo Masturbation Near Fully Clothed and Sleeping Child Does Not Constitute Production of Child Pornography (p 37)
  28. California Supreme Court Reverses Murder Conviction and Death Sentence Because Police Failed To Honor Defendant’s Request for Counsel (p 38)
  29. Fourth Circuit Expands First Step Act’s ‘Covered Offense’ to All of Section 841 (p 38)
  30. Wisconsin Supreme Court: Officers Wrongly Inventoried Vehicle for Towing, Requiring Suppression of Evidence (p 39)
  31. Sixth Circuit: Michigan Courts’ Procedure Allowing Appellate Counsel’s Withdrawal Unconstitutional (p 40)
  32. Sixth Circuit Clarifies ‘Different Location’ in Robbery Guidelines Enhancement Commentary Requires More Than Herding Victims To Different Room (p 41)
  33. Fed Position on Pot Pushing Vets to Black Market (p 42)
  34. Minnesota Supreme Court: Coercion Statute Unconstitutionally Overbroad (p 42)
  35. Less Lethal Munitions Still Deadly (p 43)
  36. Is the Georgia Bureau of Investigation Ready to Investigate Arbery Cover-Up? (p 44)
  37. Blue Lives Matter More: Georgia Introduces Hate Crime Bill Designed to Protect the Cops (p 44)
  38. Promises to Defund the Police Lead to Increase in Private Security Forces on City Streets (p 45)
  39. The Danger of Police Dishonesty (p 46)
  40. Interrogation Via Zoom: Policing in the Age of COVID (p 46)
  41. DOJ Report: Massachusetts Narcotics Bureau Relied on Excessive Use of Force (p 47)
  42. Door Bells and Funeral Bells (p 47)
  43. Did Two Judges Violate Ethics in Florida Voting Rights Restoration Case? (p 48)
  44. Kettles Are Used for Teas, Kettling is Used for People (p 48)
  45. Government Treats Protesting Cities as Enemies of the State (p 50)
  46. News in Brief (p 50)

Police Unions: Obstacles to Criminal Justice Reform and Police Accountability

Fourth Circuit Announces Discretionary Conditions of Supervision Must Be Orally Pronounced at Sentencing

The U.S. Court of Appeals for the Fourth Circuit reversed and remanded for resentencing a case because the U.S. District Court for the Western District of North Carolina imposed 26 conditions of supervision as part of its written order, but had made no mention of supervision conditions ...

Deal Presented by Kentucky Prosecutor Evidence of Effort to Smear Breonna Taylor

Attacking the Guilty Plea: Waivers, Breaches, and Getting More Time After a Successful Challenge

Pennsylvania Supreme Court Announces Reckless Prosecutorial Misconduct Constitutes Overreaching Sufficient to Trigger Double Jeopardy Protections

In ...

The 1971 Stanford Prison Experiment Showing Authoritarian Abuse Still Relevant Today

Powerful New Tool Reveals Federal Sentencing Problems

The ground-breaking service is a first of its kind and has been an eye-opener about what’s really going on in federal sentencing.

This new tool is called JUSTFAIR ...

Campaign Zero Advocates for Police Accountability

Sixth Circuit Finds IAC for Failure to Raise ‘Clearly Foreshadowed’ Change in Law on Appeal

Ninth Circuit: Use of Unconvicted Conduct Too Dissimilar to Charged Offense Violates Due Process

Fifth Circuit Grants Habeas Relief Because Detective’s Testimony of Witness Identification of Defendant Violates Confrontation Clause

Indiana Supreme Court Announces New Analytical Framework for Review of Substantive Double Jeopardy, Overruling Richardson

A jury convicted Jordan Wadle of Operating a Vehicle While Intoxicated Causing Serious Bodily Injury (“OWI-SBI”), OWI Endangering a Person, ...

Idaho Supreme Court Announces False Rape Allegations May Be Admitted Regardless of When Made

Steven Michael Chambers was charged with raping N.S. in ...

Federal Judge Criticizes Qualified Immunity and Challenges SCOTUS to Abolish It

In a recent decision dismissing a defendant’s lawsuit against a police officer on the basis of qualified immunity, Judge Carlton Reeves of Mississippi filed a 72-page opinion that challenges the morality of the doctrine of qualified immunity, provides an in-depth history of the doctrine, and concludes with a challenge to ...

Fifth Circuit Reverses Conviction Based on Prejudicial Prosecutorial Misconduct

During an interview with FBI Agent Steven Rayes, Beaulieu identified various individuals in carjackings and bank robberies. Rayes ...

Arizona Supreme Court Declares Gang-Association Statute Unconstitutional

Mississippi Supreme Court Vacates Capital Murder Conviction Obtained With Bite Mark Comparison Evidence

Eighth Circuit: Counsel Ineffective for Not Recognizing § 851 Enhancement Should Not Have Applied

First Circuit: Dangerousness of Machine Guns Not Justification for Above-Guidelines Sentence

Eleventh Circuit: Time Served Adjustment Is Mandatory Under Sentencing Guidelines Even After Booker

Kansas Supreme Court Announces Residual Clause of Law Prohibiting Knife Possession by Felons Unconstitutionally Vague

Christopher M. Harris was a convicted felon on post-release supervision ...

Maryland Court of Appeals: Odor of Marijuana Alone Doesn’t Provide Probable Cause to Arrest and Search Person

Rasherd Lewis was in a convenience store in Baltimore City on February ...

Ninth Circuit: Mere Passage of Time Doesn’t Attenuate Evidence From Initial Constitutional Violation

In July 2017, ...

California Court of Appeal: ‘Violent Victim Rule’ Doesn’t Require Defendant to Have Had Knowledge of Victim’s Propensity for Violence

Neil Efren Delrio exchanged gunfire with his cousin, Raul Prieto. According to Delrio (the only ...

N.J. Supreme Court Announces Defendant Has Right to Question Cooperating Witness About Plea Deal and Possible Sentence Exposure Even When Witness Faced Same Exposure as Defendant

Missouri Supreme Court: Circuit Court Erred in Excluding Expert Witness Testimony Regarding Accuracy of Eyewitness Identification

In October 2016, a young white man (“Victim”) was approached by two black men, hoodies pulled low to cover their ...

Seventh Circuit: Solo Masturbation Near Fully Clothed and Sleeping Child Does Not Constitute Production of Child Pornography

by Anthony Accurso

 

The U.S. Court of Appeals for the Seventh Circuit held that a conviction under 18 U.S.C. § 2251(a) for production of child pornography cannot be sustained where the defendant only engaged in sexually explicit conduct near a minor when the images were produced.

 

Prior to ...

California Supreme Court Reverses Murder Conviction and Death Sentence Because Police Failed To Honor Defendant’s Request for Counsel

by Douglas Ankney

The Supreme Court of California reversed the murder conviction and death sentence of Paul Nathan Henderson because the police continued to question him after he made an unambiguous request for counsel.

Henderson was arrested on July 5, 1997, in connection with a home invasion of a mobile ...

Fourth Circuit Expands First Step Act’s ‘Covered Offense’ to All of Section 841

Wisconsin Supreme Court: Officers Wrongly Inventoried Vehicle for Towing, Requiring Suppression of Evidence

by Anthony Accurso

The Supreme Court of Wisconsin held that the Court of Appeals erred when it affirmed the denial of a suppression motion because officers were not acting in their role as “community caretakers” when they inventoried a defendant’s vehicle for towing following a traffic stop.

Alfonso Lorenzo Brooks ...

Sixth Circuit: Michigan Courts’ Procedure Allowing Appellate Counsel’s Withdrawal Unconstitutional

by David M. Reutter

The U.S. Circuit Court of Appeals for the Sixth Circuit held that Michigan courts unreasonably applied clearly established federal law by allowing a defendant’s appellate counsel to withdraw and failing to appoint replacement counsel. The Court ordered a new first-tier appeal in Michigan courts.

The Court’s ...

Sixth Circuit Clarifies ‘Different Location’ in Robbery Guidelines Enhancement Commentary Requires More Than Herding Victims To Different Room

by Anthony Accurso

The U.S. Court of Appeals for the Sixth Circuit clarified that the term “different location” in the U.S. Sentencing Guidelines commentary definition of “abduction” requires more movement than from a sales floor of a business to the back breakroom for the related robbery enhancement to apply.

Tramain ...

Fed Position on Pot Pushing Vets to Black Market

by Jayson Hawkins 

The walls in Alex’s home are decorated with medals earned from two tours as a Marine serving in Iraq. He returned to the U.S. in 2007 at age 21, psychologically scarred by a war that left him suffering from Post-Traumatic Stress Disorder (“PTSD”) and crippling anxiety. ...

Minnesota Supreme Court: Coercion Statute Unconstitutionally Overbroad

by Anthony Accurso

In a decision issued July 22, 2020, the Supreme Court of Minnesota ruled that Minnesota Statutes Section 609.27, subd. 1(4) (2018) (“the coercion statute”) is overbroad on its face, violates the First Amendment to the U.S. Constitution, and must be struck in its entirety.

John Joseph Jorgenson ...

Less Lethal Munitions Still Deadly

Incidents like these probably went a long way to inspiring the development of ...

Is the Georgia Bureau of Investigation Ready to Investigate Arbery Cover-Up?

by Jayson Hawkins

The murder of Ahmaud Arbery was shockingly mishandled by local police from the very beginning. Two White men chased down and shot a young Black man, and yet they had not been charged two months later, despite the fact that the whole event was caught on tape. ...

Blue Lives Matter More: Georgia Introduces Hate Crime Bill Designed to Protect the Cops

by Michael Fortino, Ph.D.

In the summer of 2020, a summer of discontent, a summer rife with pandemic lockdowns and street protests, the Georgia Legislature chose not to address the unrest and concerns of protesters but rather to double down on the side of law enforcement. They decided to give ...

Promises to Defund the Police Lead to Increase in Private Security Forces on City Streets

The Danger of Police Dishonesty

Interrogation Via Zoom: Policing in the Age of COVID

DOJ Report: Massachusetts Narcotics Bureau Relied on Excessive Use of Force

That’s according to a report by the Civil Rights Division of the U.S. Department of ...

Door Bells and Funeral Bells

Did Two Judges Violate Ethics in Florida Voting Rights Restoration Case?

Kettles Are Used for Teas, Kettling is Used for People

Government Treats Protesting Cities as Enemies of the State

On June 2, thousands of protestors took to the streets in major cities across the U.S. to call for an end ...

News in Brief

Alaska: Police here can fly over property but theycannot use cameras and drones for aerial searches of property without a warrant,” the Alaska Court of Appeals ruled. “The ruling stems from a 2012 case in which Alaska State Troopers received a tip about marijuana being grown on ...

 

 

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