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A Night To Remember

Criminal Legal News: November, 2020

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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

Special Privileges That Shield Corrupt Cops

On October 20, 2014, a White Chicago police officer shot and killed a 17-year-old Black man named LaQuan McDonald. Five officers at the scene, including the shooter, said that McDonald had been slicing tires with a three-inch knife. According to these officers, when they arrived on scene, McDonald began waving the knife in an “aggressive, exaggerated manner and lunged at them,” forcing one officer to shoot and kill the teen in self-defense.

Two months later, Craig Futterman from the University of ...

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 at sentencing.

Cortez Lamar Rogers was one month into his term of post-release supervision in 2017 when he was busted during a controlled drug buy. He led officers on a dramatic high-speed chase, which ended after officers deployed spike strips to stop his vehicle.

In addition to his state charges, which included fleeing and eluding arrest, Rogers had his supervision revoked by the district court. He admitted to violating his supervision by committing a new crime, and he and the Government agreed on 24 months’ imprisonment at his sentencing for the violation.

The court then stated it would impose an “additional term of supervision of 12 months.” There was a brief discussion about whether Rogers needed drug or mental health treatment – both parties agreed he did not – and then the court ordered the proposed sentence imposed.

At no time during this hearing did the court mention any conditions ...

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

What would Glover need to do to get such a sweet deal?

Simple. Implicate his ex-girlfriend as a participant in his criminal activities. Except his ex was 26-year-old Breonna Taylor, the emergency room technician killed in her home by Louisville police during a botched drug raid March 13 and during which time her then-boyfriend Kenneth Walker shot an officer. Glover would need to sign a statement alleging that Taylor was part of his “organized crime syndicate” as he “trafficked large amounts of crack-cocaine, methamphetamine, and opiates” in the Louisville area, according to a draft copy of the proposed plea agreement. Glover also had to allege that the “handling [of] all his money” was done by the person living in Taylor’s home.

Glover refused to implicate Taylor, stating, “There was nothing never there or anything ever there, and at the end of the day, they went about it the ...

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

Waivers in Plea Agreements

Over 67 percent of plea agreements in 2015 had waivers, and these waivers are usually boilerplate language that the government uses in all of its agreements. Rarely are these waivers negotiated by defense counsel, and they’re so common that defendants often accept them as a necessary evil to pleading guilty.

But a defendant can’t just waive his rights without having notice of those rights. In United States v. Chua, 349 F. Supp. 3d 214 (E.D.N.Y. 2018), Judge Jack Weinstein criticized the government for using a “blanket” waiver barring a defendant’s right to challenge his guilty plea or sentence, without listing the rights he would be waiving. The judge “amended” the waiver to address each of the rights the defendant had that he would be waiving (or not waiving).

Any waiver ...

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

In 2002, Walter Smith told police that Clinton Robinson killed Margaret Thomas. Later that same year, Smith was shot 12 times and killed outside a bar in Philadelphia. Moments after Smith was shot, his companion, Debbie Williams, went to him and picked up his black baseball cap that was lying in the street with a bullet hole in it. After the police arrived, they took Williams to the police station to give a statement. At the station, Williams gave the black baseball cap to Detective Burns and told him that Smith had been wearing it when he was shot.

The cap was assigned property receipt number 2425291. (A property receipt is a typed report that contains information about the item, including a description and the results of any forensic analysis. The property receipt number functions as a computer database key to enable prosecutors and police to view this information.)

Testing of ...

The 1971 Stanford Prison Experiment Showing Authoritarian Abuse Still Relevant Today

The experiment was the brainchild of Stanford University psychology professor Dr. Philip Zimbardo, who provided unequivocal proof that, under the right conditions, power and authority often blur the lines of right and wrong and corrupt the psyche to perform unthinkable acts, including the abuse of our fellow human.

The 1971 study recruited 24 students to participate in a roleplay experiment in which nine would be assigned as “jailers” or “prison guards” and 15 would be assigned as captives. The experiment took place in the basement of one of the Stanford buildings, which was converted into a makeshift jail, complete with impenetrable jail cells. The structure was designed to assure that the “imprisoned” students could not casually discontinue the experiment at ...

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 (Judicial System Transparency Through Federal Archive Inferred Records), and it was developed by the Institute for the Quantitative Study of Inclusion, Diversity, and Equity (“QSIDE”) in Williamstown, Massachusetts. It’s a collection of nearly 600,000 records on federal sentencing gathered from several public sources and then refined to provide important sentencing data that couldn’t have been found in just one place before. It links information about defendant demographics, their crimes and sentences, and – most importantly – details about the judges who imposed the sentences. 

It’s the first large-scale database that links all of this information – and it’s free. While the U.S. Supreme Court held in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), that “the First Amendment guarantees of free speech and press ... prohibit the government from summarily closing courtroom doors,” the government has made it nearly impossible for the public to see what does go on ...

Campaign Zero Advocates for Police Accountability

The public outrage over the death of George Floyd while in police custody has fueled calls for police reform in a variety of areas, but one thing that has particularly infuriated reform advocates is the difficulty in getting bad cops fired. The advocacy group, Campaign Zero, has made this problem the center of its reform drive, and as public awareness grows, the effort is picking up steam and allies.

The most-often cited cause behind the difficulty in firing police officers is the power of police unions. Like many public sector unions, police unions operate quite differently from traditional organized labor. While they do negotiate for pay and benefits, the core of police union advocacy is the protection of its members from the consequences of their actions, including ...

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

Freddie Chase was convicted and sentenced in a Michigan state court in 2013 to a mandatory term of imprisonment based on facts found not by a jury (or admitted by him) but by his sentencing judge. Under state law at the time, a judge was required to impose a longer sentence under the Michigan sentencing guidelines and could not depart from that range absent “a substantial and compelling reason.” Mich. Comp. Laws § 769.34(3).

Three days after Chase’s sentencing, the U.S. Supreme Court held in Alleyne v. United States, 570 U.S. 99 (2013), that a law requiring a mandatory minimum sentence based on judge-found facts violates the U.S. Constitution. Because Chase’s sentence was on direct appeal when Alleyne was decided, the new rule applied retroactively to his case. Griffith v. Kentucky, 479 U.S. 314 (1987).

But Chase’s appellate lawyer never raised an ...

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

Martin James Kipp was arrested in January 1984 and charged with the rape and murder of Antaya Howard in Huntington Beach, California. The State also alleged a “special circumstance” that Kipp intended to murder Howard during the rape. He took his case to trial, and the prosecution introduced evidence of another rape and murder it alleged Kipp also committed. Even though Kipp was not convicted of that other crime, the prosecution was allowed to offer the jury all the evidence of that offense to show Kipp’s propensity to commit such a crime.

The other crime was the rape and murder of Tiffany Frizzell, who was found dead in September 1983 in her hotel room in Long Beach. The cause of death was strangulation, and there was evidence of a sexual assault. Kipp’s fingerprints were found in her hotel room. Howard was also strangled. Sexual assault was presumed, but no evidence ...

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

The crime was a robbery during which Justin Atkins and Lawrence Horton allegedly beat and robbed a man after he cashed a check. Horton later went to the police and told them Atkins did the crime and that he was merely a lookout. Both were arrested, and Atkins was eventually convicted by a jury of robbery and aggravated battery.

The conviction came after a Louisiana state prosecutor asked the detective on the stand before the jury: “Did you in fact speak with Lawrence Horton?” The detective said he did, and the prosecutor asked if Horton had implicated anyone in the crime. “Based on the information he provided I was able to obtain a warrant. Q: For whom? A: Justin Atkins.”

After Atkins’ appeals were exhausted, he made his way through the postconviction process in the state courts. He was rejected at every step. Filing ...

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, Leaving the Scene of an Accident – Elevated to a Level 3 Felony Due to the OWI-SBI Conviction, and OWI with breath alcohol content (“BAC”) of 0.08 or More. He was sentenced to an aggregate term of 16 years with two years suspended to probation.

The court of appeals applied Richardson’s “actual evidence” test and concluded Wadle’s convictions for leaving the scene and OWI-SBI violated the Indiana Double Jeopardy Clause.

The court of appeals applied the same reasoning to the two OWI convictions and concluded they were based on the same act of drunken driving as the convictions for OWI-SBI and leaving the scene of an accident. It remanded with instructions for the trial court to vacate all of Wadle’s convictions on double-jeopardy grounds except for the conviction for leaving the scene of an accident. The Indiana Supreme Court granted the State’s petition for transfer, vacating the decision of ...

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

Steven Michael Chambers was charged with raping N.S. in June 2016. N.S. claimed she met Chambers at his house, that he punched her in the abdomen, and then forced himself on top of her while raping her.

During preliminary hearings, Chambers sought to admit evidence per I.R.E. 412 that, six months after N.S. alleged he raped her, N.S. filed an identical claim against another man, and the detective in that case declined to arrest or charge the suspect. Indeed, the suspect claimed N.S. had visited him and had consensual sex, and the suspect was cooperative to the point of passing a polygraph test. Further, evidence showed N.S. had deleted all text messages, including sexting and provocative photos, from her phone after contacting 911 in both cases.

The trial court interpreted the language of I.R.E. 412 as not permitting the evidence because the other allegation occurred after N.S. accused Chambers and was therefore not “made at an earlier time.” The ...

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 the U.S. Supreme Court to abolish it.

Clarence Jamison was driving to his home in South Carolina after vacationing in Arizona, where he had purchased a Mercedes convertible. On July 29, 2013, as Jamison was passing through Pelahatchie, Mississippi, Officer Nick McClendon noticed a “Black man driving a Mercedes” and decided to pull him over. At trial, McClendon claimed the temporary tag was bent and the license number was obscured, but during the stop he told Jamison that police had received a tip that the Mercedes was stolen and contained 10 kilos of cocaine. Nearly two hours later, after McClendon had caused about $4,000 worth of damage to the vehicle while searching it and had inspected it with a drug dog, he let Jamison go on his way.

“Thankfully, Jamison left the stop with his life,” Reeves said in his opinion. “Too many others have not.”

Jamison filed a lawsuit ...

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 memorialized the interview in an FBI form bearing the number 302 (“302”). Assistant U.S. Attorney Michael McMahon called Beaulieu to testify against two of the men he had named. Beaulieu refused to testify, invoking his Fifth Amendment privilege against self-incrimination. The U.S. District Court for the Eastern District of Louisiana appointed Cynthia Cimino as counsel for Beaulieu. The following day, the Department of Justice (“DOJ”) granted Beaulieu immunity from prosecution under 18 U.S.C. §§ 6002-6003. Beaulieu still refused to testify, and he was charged with felony criminal contempt. The district court appointed McMahon to prosecute the charge. Cimino withdrew as counsel, and new counsel was appointed.

Cimino was called as a witness by the defense. She testified that two letters had been provided that offered Beaulieu immunity. In a letter dated April 25, 2018, the prosecutor stated he would not use any statements Beaulieu made in his testimony against him ...

Arizona Supreme Court Declares Gang-Association Statute Unconstitutional

In two separate incidents, Christopher Arevalo allegedly verbally threatened someone and was charged with two counts of threatening or intimidating someone under A.R.S. § 13-1202(B)(2). Normally, such a charge would be a misdemeanor under Arizona law, but it was further alleged that Arevalo was a gang member. As such, the charges were automatically bumped up to felonies.

Arevalo moved in the trial court to dismiss the charges or to at least reduce them to misdemeanors, arguing that the gang-association enhancement under the statute making them felonies is unconstitutional. The court agreed and dismissed the charges, holding that § 13-1202(B)(2) violates due process by punishing someone for associating with a gang.

The State appealed and won. The court of appeals held that § 13-1202(B)(2) “does not penalize mere membership in a criminal street gang — it penalizes the added menace inflicted when a criminal street gang member is engaged in criminal ...

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

On February 2, 1992, smoke from a small, smoldering fire led to the discovery of the body of Georgia Kemp, 84, in her house. An autopsy determined that she had been beaten, raped, strangled, and stabbed; however, no bite marks were found on her body, which was subsequently buried.

Three days later, the doctor who performed the autopsy requested an additional study of Kemp’s body, which was exhumed and examined under ultraviolet light by Dr. Michael West, a forensic odontologist. He discovered otherwise invisible marks on the right breast, right side of the neck, and right arm. He used dental impressions of Eddie Lee Howard, Jr.’s teeth to perform a “wound duplication test with ink” and determined that the mark on the right breast ...

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

Rocky Thomas Mayfield was charged with several crimes relating to methamphetamine conspiracy, possession, and distribution, as well as being a felon in possession of a firearm. The Government also filed an enhancement under 21 U.S.C. § 851 for his 2002 conviction in Arizona for possession of drug paraphernalia. This put his statutory minimum at 240 months.

The Government offered a plea agreement in which Mayfield would plead to the conspiracy and firearm counts in exchange for the Government “to recommend a sentence at the low end of the sentencing guideline range found by the court at the sentencing hearing or the statutory minimum mandatory imprisonment sentence, whichever is higher.” The Government estimated his range would be 292 to 365 months if he went to trial or 240 to 293 if he took the plea. Under those terms, counsel suggested Mayfield decline the offer ...

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

When Julian River-Berrios was seen with a federal fugitive in Puerto Rico, he was arrested for being a felon in possession of a firearm and for that possession being a “machine gun” under 18 U.S.C. §§ 922(g)(1) and (922)(o)(1). When the Government realized he wasn’t a felon, it had to drop the felon in possession charge, and Rivera-Berrios then pleaded guilty to possessing the machine gun.

The presentence report established that Rivera-Berrios was a first-time offender and that the U.S. Sentencing Guidelines range (“GSR”) for his offense was two- to two-and-a-half years in prison. The Government recommended a sentence at the bottom of that range.

Instead, the district court gave a speech about guns and violence in Puerto Rico and imposed a three-and-a-half year sentence. The court noted that “modern machine guns can fire more than one thousand rounds a minute ...

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

Christopher Henry pleaded guilty in Alabama state court to stealing eight firearms during a business burglary. Because of his prior convictions – one for assault and 10 for burglary – he was sentenced to 20 years in prison.

Two years later, Henry pleaded guilty in federal court to being a felon in possession of a firearm – based on his theft of the firearms. His presentencing investigation report showed a Guidelines range of 130 to 162 months but was reduced to the statutory maximum for his crime, 120 months. The court sentenced him to 108 months. 

Henry requested a downward adjustment of his sentence for the 24 months he had already served on the state burglary conviction pursuant to U.S.S.G. § 5Gl.3(b)(l). Citing his lengthy criminal ...

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 when he was observed in an altercation with another man on a street in Wichita, Kansas. An officer turned his spotlight on the men, and Harris dropped an object, which turned out to be a pocket knife with a 3.5-inch serrated blade.

Harris was charged with aggravated assault, criminal use of a weapon, and criminal possession of a weapon by a convicted felon. Before trial, Harris moved to have the possession charge dismissed on the grounds that the statute is unconstitutionally vague.

K.S.A. 2019 Supp. 21-6304 defined a knife as “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” The portion of this statute after the word ‘or’ is the residual clause, and the portion of the law under which both Harris and the State agreed he was prosecuted.

Harris also sought to introduce evidence that his parole officer had issued ...

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 1, 2017, when officers got a tip that someone matching his description was “potentially armed.” Officers located Lewis, but the tip was not, by itself, sufficient to search or arrest him. Offices ordered the patrons of the store to leave, and when Lewis was passing them, Officer Burch said he smelled the odor of burnt marijuana on him.

Officers searched him and found a non-criminal amount of marijuana, plastic baggies, $367 in cash, and a handgun. Lewis was charged with criminal possession of a firearm. He filed a motion to suppress the firearm on the ground that the search was unconstitutional, but the motion was denied. Lewis was convicted in a bench trial and sentenced to three years’ incarceration with all but 90 days suspended, and three years’ probation. Lewis appealed the results of the suppression hearing.

The Court of Special Appeals affirmed the results of the suppression hearing by ...

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

In July 2017, a police aircraft flying over Gresham, Oregon, was struck by a green laser, temporarily blinding the pilot. The plane’s equipment was able to determine the laser was beamed from Bocharnikov’s residence. After midnight, officers from the Multnomah County Sheriff’s Department (“MCSD”) arrived at the residence. Bocharnikov, wet from his shower and wearing only his boxer shorts, came to the door.

When asked about the laser, he said “[i]t was the kids.” An officer then handcuffed Bocharnikov, sat him on the front steps of his house, explained “the seriousness of the incident,” and said that they “were there only to recover the laser in question.” Bocharnikov then admitted to shining the laser at the plane, stating he did not think it could reach that far. After apologizing, he handed over the laser to the officers. The officers released Bocharnikov and left.

Eight months later in March 2018, FBI Special Agent Adam ...

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 eyewitness), Prieto became angry and pulled his nine-millimeter handgun because he believed Delrio was snubbing him, i.e., not speaking to him, “ducking” him, etc. Delrio testified he was “in fear of [his] life” after Prieto racked a round into the gun’s chamber and raised it toward him. Delrio testified he then pulled his own .40 caliber pistol and fired at Prieto. Prieto fired once in return. Delrio then fired again before getting into his vehicle and driving off. Prieto continued firing at Delrio as he drove away.

Prieto died from two bullet wounds to his abdomen. A .40 caliber bullet was recovered from his body. From the scene of the shooting, police recovered two .40 caliber cartridge casings and 15 nine-millimeter cartridge casings. Delrio’s vehicle had multiple bullet holes, and a bullet fired from Prieto’s weapon was found in the car.

Because Delrio intended to claim self-defense, prior to trial, ...

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

Tiffany Taylor, Javon Clarke, and Michael A. Jackson were arrested and charged in connection with a burglary at the residence of L.G. Because of Clarke’s priors, a possible sentence of up to five years in prison could be enhanced to 10 years. Clarke accepted a cooperating plea offer in which he agreed to testify against Jackson and Taylor in exchange for a three-year sentence. But the trial judge urged modification of the agreement to provide for Clarke being sentenced to only 180 days in the county jail and probation.

At trial, Clarke testified that Jackson picked him up on the morning of the burglary, drove him to ...

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 faces. It was dark and the nearest street light was some distance away. One of the men lifted his shirt, showing Victim what appeared to be a handle to a pistol. The man said, “Give me what you have or I’ll shoot you.” The two men took Victim’s iPhone, earbuds, e-cigarette, and nicotine cartridge.

Victim observed the two men run into an alley. Victim then borrowed the phone of a nearby pedestrian and phoned police. Two officers met with Victim within seconds. Less than five minutes elapsed from the time of the robbery until a description of the robbers went out over the police radio. Within two minutes, other officers radioed that they had detained two suspects and asked that Victim be brought to location for a show-up identification.

When Victim was brought to location, Carpenter was seated on the curb with another black male. Both were in cuffs. Neither ...

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 law enforcement serving a search warrant and inspecting his computers in August 2017, Matthew Howard made two videos showing himself masturbating near his sleeping and fully-clothed, 9-year-old niece. Howard pleaded guilty to several charges relating to the possession, receipt, and distribution of child pornography under §§ 2252(a)(2) and (a)(4) but went to trial on the production counts.

 

After a lengthy battle over the jury instructions pertaining to the elements of the crime, the district court allowed the jury to convict him if it found, in pertinent part, that, “The defendant knowingly used [his niece] to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.”

 

The Government argued to the jury: “This isn’t about what [his niece] did or didn’t do. The law says you look at what did the defendant use [his niece] to engage in masturbation, did the defendant use ...

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 home that resulted in the death of Reginald Baker and an assault on his wife Peggy Baker.

Detective Wolford and Officer Herrera of the Cathedral City Police Department interviewed him. He waived his Miranda rights. The officers said they were investigating crimes against the Bakers at the Canyon City trailer park on June 22, 1997. When asked if he went to the trailer park, the following exchange occurred:

Henderson: “Uhm, there’s some things that I, uhm, want uh ...”

Wolford: “Did you go to the trailer park, that night?”

Henderson: “[Want], want to speak to an attorney first, because I, I take responsibility for me, but there’s other people that ...”

Herrera: “What do you ...”

Henderson: “I need to find out ...”

Herrera: “Paul.”

Henderson: “I need to find out.”

Herrera: “Paul, what do you accept responsibility for?”

Henderson: No response.

Herrera: “Do you accept responsibility for what happened ...

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

In 2009, Albert Woodson was sentenced to just under 13 years in federal prison for distributing 0.41 grams of crack cocaine. When the First Step Act was passed, he filed for retroactive application of the Fair Sentencing Act of 2010 (“FSA of 2010”), which lowered the threshold for crack sentences for each provision of 21 U.S.C. § 841(b)(1). However, the U.S. District Court for the Northern District of West Virginia ruled that since Woodson’s sentence was under § 841(b)(1)(C) and would have remained under the same penalty range, he didn’t qualify under the First Step Act.

On appeal, Woodson argued that the First Step Act modifies § 841(b)(1)(C), and his offense is thus a “covered offense” to qualify under the First Step Act. The Fourth Circuit agreed. Under 21 U.S.C. ...

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 was pulled over for driving no less than 15 mph over the speed limit late one summer night in 2014. He exited the freeway and legally parked in a mixed commercial and residential neighborhood where, during the stop, the sheriff’s deputies ascertained that his driver’s license had been suspended. As they were issuing him citations for speeding and driving on a suspended license, they informed him that they were required to have his vehicle towed because he could not legally drive.

Brooks protested, saying that the vehicle belonged to his girlfriend and that she would arrive shortly to obtain the vehicle. The deputies said they could not allow an additional non-official person at the scene of a traffic stop, and they began a tow inventory search on the vehicle. They discovered a firearm in the trunk area and then promptly arrested Brooks for being a felon in possession of a ...

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 August 14, 2020, opinion was issued in an appeal brought by Michigan prisoner Daniel M. Pirkel. He was charged with 17 crimes that occurred in a few short months in 2007. At a January 24, 2008, plea hearing, Pirkel expressed reservations about entering a plea. The plea court allowed him 90 minutes to read the police reports. When it reconvened, two charges were dropped, and Pirkel pleaded no contest to the remaining charges. The court accepted the pleas after a colloquy into knowingness and voluntariness.

Prior to sentencing, Pirkel wrote the court to express that he was “in no way comfortable with anything pertaining to my case such as my plea, my lawyers, and my mental state.” The court said it had reviewed the tape of the plea hearing and would not allow withdrawal of the plea. It then sentenced Pirkel to 20 to 50 years on two counts of ...

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 Hill pleaded guilty to Hobbs Act robbery and aiding and abetting for his role in the armed robbery of a Universal Wireless store in Coldwater, Michigan, on August 27, 2016. Hill and his codefendants forced three employees and a female customer from the sales floor to the back breakroom at gunpoint. The robbers then looted the store and fled with approximately $42,000 in stolen cellphones and cash.

At sentencing, the district court applied an enhancement under (b)(4)(A) of Section 2B3.1 of the Guidelines because the victims were “abducted to facilitate commission of the offense or to facilitate escape,” resulting in an additional four points and a sentencing range of 130 to 162 months. Hill argued that he should merely be subject to a two-point enhancement under (b)(4)(B), which requires that the victims were “physically restrained to facilitate commission of the offense or to facilitate escape,” which would result in a ...

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. Veterans Affairs (“VA”) doctors offered him anti-anxiety drugs, but Alex refused after having watched so many fellow vets become addicted to the legal medications. He turned instead to alcohol, numbing the pain with a bottle of vodka a day until developing a possibly lethal pancreas inflammation. Over the next year, Alex managed to quit using alcohol and cope with his emotional issues by smoking marijuana, which has legal status in his home state of California.

For Alex and other vets like him, pot allows them to function despite the traumas they have experienced. Clinical studies have affirmed the benefits of marijuana and cannabidiol, a nonintoxicating extract from cannabis plants, in the treatment of anxiety, insomnia, and chronic pain, and recent trials have supported the use of pot to ease PTSD symptoms. Laws in 33 states and counting have recognized such findings and have legalized either medicinal or recreational marijuana use, ...

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 was charged under the coercion statute after he contacted R.C., the father of his girlfriend J.C., and demanded $25,000 in exchange for not releasing a video of J.C. – in which she discussed smoking marijuana – to various agencies, including the Minnesota Department of Human Services, J.C.’s employer, and J.C.’s professional licensing board.

Jorgenson moved to dismiss because, among other reasons, the statute violates the First Amendment. The district court granted his motion on this ground, and the court of appeals affirmed. The State then appealed to the Minnesota Supreme Court.

The Court described the statute as follows: “Section 609.27, subdivision 1, provides that anyone who ‘orally or in writing makes’ a ‘threat’ falling into any one of six enumerated categories, and who ‘thereby causes against the other’s will to do any act or forebear doing a lawful act is guilty of coercion.’ Subdivision 1(4), one of the six categories, ...

Less Lethal Munitions Still Deadly

Incidents like these probably went a long way to inspiring the development of less lethal munitions used by police at demonstrations that become disruptive and even riotous. Less lethal munitions may work in theory, but over several decades, their use has probably maimed and killed more demonstrators than real bullets.

According to Plumas County Sheriff’s Office Deputy Chief Ed Obayashi, the primary objective for using them is “to inflict pain to gain compliance and to disburse a crowd,” he told USA Today. He added that if demonstrators remain noncompliant with police instructions, “firing on the overall crowd could be justified.”

Less lethal munitions are actually viewed as lifesavers by giving police a “knock down option to disable threats from a safe distance without killing the target.” This further enables police administrators and supervisors to downplay less lethal munitions’ misuse “as conduct violations rather than weaponry problems.”

The three most common types of less lethal munitions are bean bags, rubber bullets, and paintball ...

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. Not surprisingly, when the Georgia Bureau of Investigation (“GBI”) took over the case, most onlookers saw it as a step in the right direction. The history of the GBI, however, does not inspire confidence, especially when the case involves delivering justice for a Black man. 

Nearly 600 Black people were killed in lynchings in Georgia between 1877 and 1950, and multiple observers have chronicled the insidious presence of the Ku Klux Klan at every level of Georgia law enforcement in those years, as well as the lasting impact of that presence in the often toxic relationship between Georgia police and the Black community. The GBI is not free from this taint. Founded in 1937, one of the earliest directors of the GBI was Sam Roper, a local Klan leader who later became its Imperial Wizard. Even after the overt presence of the Klan was removed, the GBI has repeatedly ...

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 police and first responders more legalized protections and powers, including immunity from nearly any civil action brought against them. On August 12, 2020, Georgia passed, by a thin margin, the controversial bill HB-838/AP, under a vote that was split down the conservative/liberal party line.

Law enforcement has always enjoyed various protections that relate to this unique and dangerous line of work, but in recent years, states such as Georgia have begun to expand such protections leaving the public with a “David and Goliath” disadvantage. Law enforcement has enjoyed “qualified immunity,” a nearly impenetrable legal shield that provides an officer with immunity from nearly any civil lawsuit. This one-sided protection has successfully provided them the ability to act with impunity in almost any scenario short of acts involving premeditated criminal intent or outright murder. 

Police have also enjoyed safety behind the iron curtain of labor unions. Beyond these protections, law ...

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

In June, Minneapolis was the first of any large city to actually pledge to wholly disband its police department, though now some council members are retreating from it becoming actual policy.

Several other communities have begun only a defunding process, with at least 13 cities eliminating officer positions and cutting department budgets. Among them are New York City, Atlanta, Los Angeles, Austin, Salt Lake City, Kenosha, and Norman.

Organizers are obviously requesting that police departments be dismantled. They desire a shift of funds to other programs that focus on violence prevention, safety, and community health. The result may not be what is actually being demanded. What city leaders are doing is merely transferring budgetary allocations to the hiring of private security. In some communities, these cuts resulted in privatization, not less policing.

During one June ...

The Danger of Police Dishonesty

Recent events have shown what can happen when large sections of society lose confidence in the legitimacy of police power, and though the outrage playing out in cities across the U.S. was mostly inspired by ...

Interrogation Via Zoom: Policing in the Age of COVID

This tactic, known as the Reid technique of interviewing, is intended to raise the suspect’s anxiety level, which in turn makes him or her feel vulnerable and reliant on the mercy of the interrogator. While this seems more civilized than past methods, such as simply beating someone until they confess, the coercive nature of the Reid technique can still generate false confessions.

Advocates for criminal justice reform have been pushing for less invasive tactics, yet recent changes to the way many police departments conduct their business has been spurred by another source entirely – the coronavirus pandemic.

The tight confines of an interrogation room are no longer practical at a time when the safety of both suspects and law enforcement is at a premium. Interviews with suspects in several cities have been moved outside, such as in Clearwater, Florida, where interrogations take place at a safe social distance in the ...

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 Justice (“DOJ”) and the Massachusetts District of the U.S. Attorney’s Office (“USAO”) published July 8, 2020.

The NB in Springfield is a small plainclothes department of 29 when fully staffed and covers the state’s third largest city. It came under public scrutiny after several use of force incidents, culminating in a report of abuse by a sergeant on two juveniles under arrest in 2016.

On April 13, 2018, the DOJ and the USAO began their investigation, reviewing over 114,000 pages of documents, interviewing NB and SPD staff and officials, and speaking with community members and victims. Their conclusion: The narcotics team engaged in a “pattern or practice” of excessive force violating the public’s Fourth Amendment rights.

“Specifically, our investigation identified evidence that Narcotics Bureau officers repeatedly punch individuals in the face unnecessarily, in part because they escalate encounters with civilians too quickly, and resort to unreasonable takedown maneuvers that, like ...

Door Bells and Funeral Bells

In the first quarter of 2020, police requested customers’ videos over 5,000 times, the Electronic Frontier Foundation reports. While it is not known how many of those requests were granted, it is known that as of June 22, 2020, Ring had partnerships with 1,403 law enforcement agencies (up from about 200 agencies in April 2019). Of those 1,403 agencies, 559 (40%) of them have been responsible for at least one death at the hands of police since 2015. And of the 6,084 reported deaths, agencies in partnerships with Ring accounted for 2,165 (35%) of those deaths.

Ring has turned many police forces into its sales force. Ring has drafted press statements and social media posts for police to promote Ring cameras and to terrify people into thinking their homes are in persistent danger. Yet there is no scientific data to show Ring prevents or reduces crime or ...

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

Robert Luck and Barbara Lagoa served on the Florida Supreme Court. Both were later selected to serve on the U.S. Court of Appeals for the Eleventh Circuit during the course of these proceedings. During their tenure on the state Supreme Court, Lagoa and Luck participated in oral arguments on the amendment issue. Lagoa was particularly vociferous in her argument supporting that the amendment clearly intended to include payment of all owed monies. Despite both judges hearing the case, neither Lagoa nor Luck contributed to ...

Kettles Are Used for Teas, Kettling is Used for People

The traditional method used by police to control riots or crowds is dispersal. This is effected in many ways like using tear gas or even water cannons. No more people, rioters, protesters, or crowds. Pretty simple.

The U.S. has a combined jail and prison population of 2.3 million of its citizens. If rioters, protesters, or just crowds of people disburse, there is no way to enter them into the nation’s ever-growing ranks of criminals. Kettling solves that problem.

The idea is to confine the rioters, protesters, or crowds in an area from which they are unable to escape. For residents caught outside their homes or passers-by caught up in a kettling operation, they become collateral damage. Even if they are not later convicted of anything, they now have an arrest record.

In early June, a group of over 600 peaceful protesters in Dallas, Texas, were effectively kettled ...

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 to police brutality. In response, cities such as Washington, D.C., Portland, Oregon, and Las Vegas, Nevada, sent police out for crowd control. And, after an armed protestor was shot in Las Vegas, the police were joined by the National Guard.

A review of unfiltered flight data examined by Motherboard on ADS-B Exchange showed police in Washington, D.C., employed several RC-26Bs carrying infrared and electro-optical cameras used in counter-narcotic and military combat missions. A letter from Congress to the House Armed Services Committee about these craft reads: “The aircraft is uniquely qualified as the only fixed-winged aircraft to have Title 32 authority to conduct domestic surveillance while maintaining the ability to conduct Title 10 missions abroad.”

Security researcher John Scott-Railton discovered the same craft over Las Vegas as well as aircraft flown by the Texas Department of Public Safety over Houston and California Highway Patrol aircraft being flown over Oakland. In ...

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 a property near Fairbanks,” scnow.com reports. Then they used a helicopter and a telephoto lens to capture images of the tree-obscured property, photos that they used to obtain a search warrant and arrest owner John William McKelvey. His attorney “filed a motion to suppress evidence, claiming that taking photos from the air to obtain a warrant invaded his client’s right to privacy. The trial court rejected the argument, and McKelvey was found guilty on two charges. The case was heard by the Alaska Court of Appeals in 2018. McKelvey attorney Robert John said the appeal ruling confirmed police in the air ‘can only investigate with their naked eye. They cannot employ technology. They cannot employ drones.’”

Arkansas: Arkansas County Sheriff Todd Wright resigned in late August 2020 after an audio recording surfaced of him repeatedly using the “N” word in a grocery store in DeWitt. Wright had reacted to a ...

 

 

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