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Criminal Legal News: December, 2020

Issue PDF
Volume 3, Number 12

In this issue:

  1. Revocation Nation: Reincarceration for Technical Parole Violations in the Age of COVID-19 (p 1)
  2. Federal Habeas Corpus: Time Limits for Filing (p 8)
  3. First Circuit Announces Residual Clause of U.S.S.G. § 4B1.2(a)(2) When Applied Pre-Booker Is Unconstitutional Under Johnson (p 10)
  4. Why Coroners Often Blame Police Killings on a Made-Up Medical Condition (p 12)
  5. Cincinnati Police Department Agrees to Audit of Its DNA Database (p 14)
  6. Fourth and Fifth Circuits Reopen Decades-Old Cases for Habeas Relief Due to Brady Violations (p 16)
  7. Time to Curb Police Unions (p 18)
  8. Eighth Circuit Vacates Sentence After District Judge 
Interfered With Plea Negotiations and Made Disparaging 
Remarks About Federal Judiciary (p 20)
  9. Massachusetts Supreme Court: Brady Requires Disclosure of Exculpatory Material Revealed During Immunized Testimony Before Grand Jury (p 20)
  10. Mississippi Supreme Court: Cannot Declare Mistrial on All Counts After Jury’s Acquittal on Some Counts (p 22)
  11. California Court of Appeal Reverses Murder Conviction Because Superior Court Erred by Allowing Deceased’s Out-of-Court Statements Into Evidence (p 22)
  12. From the Editors (p 24)
  13. New Report Shows More Than Half of Wrongful Convictions Involved Misconduct by Police and Prosecutors (p 24)
  14. Seventh Circuit: Prior Conviction Under Overbroad State Drug Statute May Be Used in Career Criminal Enhancement But Not For Prior Drug Crimes Enhancement (p 26)
  15. Hawai’i Supreme Court Announces Admissibility of Third-Party Culpability Evidence Is Same Relevancy Test That’s Applied for Other Evidence, Superseding Rabellizsa (p 26)
  16. Fifth Circuit: Consecutive Sentence for FTA Must Be Part of ‘Total Punishment,’ Not Merely a Stacked Sentence (p 27)
  17. Colorado Supreme Court: Felony DUI Conviction Requires ‘Mandatory Sentencing’ Triggering Right to Preliminary Hearing (p 28)
  18. Second Circuit: Nondescript Photo of Unidentified Black Male Insufficient Grounds to Conduct Investigatory Stop (p 28)
  19. Sixth Circuit Vacates First Step Act 
Resentencing Denial Where Court Failed 
to Consider Post-Sentencing Conduct (p 29)
  20. Federal Judges Beginning to Reject Geofence Warrants (p 30)
  21. Montana Supreme Court: Renter’s Privacy Not Diminished By Landlord’s Probationary Status (p 30)
  22. Fifth Circuit: Safety Valve Isn’t Up to the Government (p 31)
  23. Maine Supreme Court: SORNA Ruled Ex Post Facto Punishment for Defendant (p 32)
  24. Seventh Circuit: Incompetent Advice to Reject Plea Offer Requires Evidentiary Hearing (p 32)
  25. New Hampshire Supreme Court Announces Adoption of Lafler When Reviewing IAC Claims in Plea Bargain Cases (p 33)
  26. Colorado Supreme Court: Convictions for Murder and Attempted Murder Violate Double Jeopardy (p 34)
  27. Third Circuit Announces Resentencing Under First Step Act Requires Use of § 3553(a) Factors (p 35)
  28. Kansas Supreme Court Reverses Conviction Where Trial Court Refused to Give Self-Defense Instruction (p 36)
  29. Ninth Circuit: California Conviction Under § 261.5(c) Not Predicate Offense For § 2252(b)(1) Enhancement (p 36)
  30. COVID-19 Has Profound Effect on Breadth and Scope of Law Enforcement Agencies (p 37)
  31. Sixth Circuit Vacates Sentence Where Upward Variance Based on Criminal History Had Little Bearing on Instant Offense (p 38)
  32. Washington Supreme Court Announces Prohibition Against Blanket Shackling Policies at Pretrial Proceedings (p 39)
  33. Second Circuit Announces Compassionate Release Motion by Prisoner Not Constrained by Outdated Guideline § 1B1.13, Application Note 1(D) (p 40)
  34. Colorado Supreme Court Holds Successfully Completed Deferred Judgment Does Not Count as Conviction Barring Relief From Sex Offender Registration (p 40)
  35. $12 Million Settlement Against Louisville, Kentucky (p 41)
  36. Review Board Has No Power Over NYPD (p 42)
  37. Shielding Police Identities: A Law That Cuts Both Ways (p 42)
  38. Exodus of a Baker’s Dozen (p 43)
  39. Proliferation of Police Drones Feeds Big Brother’s Need for Big Data (p 44)
  40. PBA Cards and the Problem with Police Discretion (p 44)
  41. Thirty-Fourth Conviction Based on Bite Mark Forensics Overturned (p 45)
  42. For-Profit Lexipol Takes Over Writing Departmental Policy for Public Safety (p 45)
  43. Guilt by Google (p 46)
  44. Technology and Police Reform (p 47)
  45. Would the Real Officer Friendly Please Stand Up? (p 47)
  46. North Carolina Supreme Court Announces Harbison Applies When Defense Counsel Implies Defendant’s Guilt Without Prior Consent (p 48)
  47. Government Enforcers Are Still Cops (p 50)
  48. News in Brief (p 50)

Revocation Nation: Reincarceration for Technical Parole Violations in the Age of COVID-19

Jonathan Best had been out of prison for two years when he ended a rocky relationship with his girlfriend. Like many men and women on parole—a form of early release, in which the remainder of one’s sentence is served in the community—he suffered from depression and anxiety.

At the time, Best often had to choose between paying his monthly $80 parole fee and putting food on the table. He worried that if he got pulled over for speeding, a warning would go straight to his parole officer (PO). Like many who face the stress of reentry from prisons in the US, Best sometimes coped by using drugs or alcohol. He rarely felt free.

Best never found out exactly what happened on Aug 16, 2012, the day he was sent back to prison. Nor does he know what part his ex-girlfriend played in his return, though Best suspects that she called his PO and told the officer that he was doing drugs.

Unofficial protocol was for Best’s PO to appear at his doorstep; supervision often means giving up one’s Fourth Amendment right to privacy in one’s home. But on ...

Federal Habeas Corpus: Time Limits for Filing

by Dale Chappell

In my first column in this series on federal habeas corpus for state and federal prisoners, we’ll go over time limits for filing in federal court and how those time limits are calculated. The following information is adapted from my book WinningCites: Section 2255, A Handbook for ...

First Circuit Announces Residual Clause of U.S.S.G. § 4B1.2(a)(2) When Applied Pre-Booker Is Unconstitutional Under Johnson

by Douglas Ankney

Bucking the trend among the majority of federal circuits, the U.S. Court of Appeals for the First Circuit announced that the residual clause of U.S. Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 4B1.2(a)(2) – when applied prior to United States v. Booker, 543 U.S. 220 (2005) – ...

Why Coroners Often Blame Police Killings on a Made-Up Medical Condition

by Samantha Michaels, Mother Jones

A day after police officer Derek Chauvin pressed his knee against George Floyd’s neck in Minneapolis, killing him, a county medical examiner began an autopsy. His preliminary findings seemed to conflict with what people had seen in ...

Cincinnati Police Department Agrees to Audit of Its DNA Database

The Innocence Project of New York, along with the Cincinnati, Ohio, law firm of Gerhardstein & Branch (collectively “Plaintiff’s Counsel”), negotiated a settlement on September 14, 2020, wherein the Cincinnati Police Department (“CPD”) agreed to an unprecedented audit of its DNA-based homicide cases.

The settlement emerged from ...

Fourth and Fifth Circuits Reopen Decades-Old Cases for Habeas Relief Due to Brady Violations

The Fifth Circuit Case

The ...

Time to Curb Police Unions

Eighth Circuit Vacates Sentence After District Judge 
Interfered With Plea Negotiations and Made Disparaging 
Remarks About Federal Judiciary

by Douglas Ankney

The U.S. Court of Appeals for the Eighth Circuit vacated Seneca Harrison’s sentence because the judge for the U.S. District Court for the Western District of Missouri interfered with plea negotiations and made disparaging remarks about the federal judiciary.

The Government offered Harrison a deal where, in ...

Massachusetts Supreme Court: Brady Requires Disclosure of Exculpatory Material Revealed During Immunized Testimony Before Grand Jury

by Douglas Ankney

The Supreme Judicial Court of Massachusetts affirmed an order of a trial judge requiring a district attorney to disclose to defense attorneys details of misconduct by two police officers that were disclosed during the immunized testimony of the officers before a grand jury.

In July 2019, Fall ...

Mississippi Supreme Court: Cannot Declare Mistrial on All Counts After Jury’s Acquittal on Some Counts

by Anthony Accurso

The Supreme Court of Mississippi held that a district court erred when it ordered a mistrial on all three counts of an indictment after the jury had returned an acquittal on two of the counts.

Johnathan Nickson was tried in mid-2018 on two counts of first-degree murder ...

California Court of Appeal Reverses Murder Conviction Because Superior Court Erred by Allowing Deceased’s Out-of-Court Statements Into Evidence

by Douglas Ankney

Division One of the Fourth Appellate District of the California Court of Appeal reversed Rene Quintanilla, Jr.’s murder conviction because the Superior Court allowed as evidence the deceased’s out-of-court statements under the hearsay exception in Evidence Code § 1390.

Quintanilla killed his live-in girlfriend (identified only as ...

From the Editors

 

This issue of CLN is being provided to all Prison Legal News subscribers as a complimentary review copy. For those readers who may not be familiar with CLN, here’s a brief overview.

CLN is a monthly print and online publication focusing on individuals’ legal rights as they pertain ...

New Report Shows More Than Half of Wrongful Convictions Involved Misconduct by Police and Prosecutors

Seventh Circuit: Prior Conviction Under Overbroad State Drug Statute May Be Used in Career Criminal Enhancement But Not For Prior Drug Crimes Enhancement

Hawai’i Supreme Court Announces Admissibility of Third-Party Culpability Evidence Is Same Relevancy Test That’s Applied for Other Evidence, Superseding Rabellizsa

 

by Douglas Ankney

The Supreme Court of Hawai’i announced that the standard for admission of third-party culpability evidence is the same as the relevancy test that is applies to other types of evidence, superseding State v. Rabellizsa, 903 P.2d 43 (Haw. 1995).

Yoko Kato was arrested on charges ...

Fifth Circuit: Consecutive Sentence for FTA Must Be Part of ‘Total Punishment,’ Not Merely a Stacked Sentence

by Dale Chappell

The U.S. Court of Appeals for the Fifth Circuit held that a mandatory consecutive sentence for a failure to appear (“FTA”) conviction must be calculated as part of the “total punishment,” not merely a stacked sentence, in order to adhere to the U.S. Sentencing Guidelines (“USSG”).

After ...

Colorado Supreme Court: Felony DUI Conviction Requires ‘Mandatory Sentencing’ Triggering Right to Preliminary Hearing

 

by Anthony Accurso 

The Supreme Court of Colorado, proceeding from original jurisdiction on appeal from a district court, held that the district court erred in denying a preliminary hearing to a defendant charged with a class 4 felony DUI simply because he was free on personal recognizance pending ...

Second Circuit: Nondescript Photo of Unidentified Black Male Insufficient Grounds to Conduct Investigatory Stop

On September 2, 2017, Jaquan Walker and Javone Hopkins ...

Sixth Circuit Vacates First Step Act 
Resentencing Denial Where Court Failed 
to Consider Post-Sentencing Conduct

 

by Anthony Accurso

In a decision filed on August 26, 2020, the U.S. Court of Appeals for the Sixth Circuit vacated the U.S. District Court for the Western District of Kentucky’s order denying a prisoner’s motion for sentence reduction under the First Step Act because the court failed to ...

Federal Judges Beginning to Reject Geofence Warrants

Such warrants are sometimes ...

Montana Supreme Court: Renter’s Privacy Not Diminished By Landlord’s Probationary Status

 

by Anthony Accurso

The Supreme Court of the State of Montana held that a defendant’s rights to be free from unreasonable searches and seizures and invasions of privacy were violated when his landlord’s probation officer searched his rented space.

Stephen Thomas was caring for his sick wife when they ...

Fifth Circuit: Safety Valve Isn’t Up to the Government

 

by Dale Chappell

The U.S. Court of Appeals for the Fifth Circuit held on August 21, 2020, that it’s not up to the Government to determine whether a defendant qualifies for a reduced sentence under the safety valve provisions of 18 U.S.C. § 3553(f). Instead, the Court reminded, it ...

Maine Supreme Court: SORNA Ruled Ex Post Facto Punishment for Defendant

by Anthony Accurso

In a decision issued August. 13, 2020, the Maine Supreme Judicial Court held that the Sex Offender Registration and Notification Act of 1999 (“SORNA of 1999”) was unconstitutionally applied to a defendant in violation of the Maine and U.S. Constitutions’ ex post facto provisions.

Craig A. Porter ...

Seventh Circuit: Incompetent Advice to Reject Plea Offer Requires Evidentiary Hearing

by David M. Reutter

The U.S. Court of Appeals for the Seventh Circuit held a district court erred in failing to grant an evidentiary hearing on a claim that counsel rendered ineffective assistance by advising him to reject a favorable plea agreement without having reviewed the case file.

David L. ...

New Hampshire Supreme Court Announces Adoption of Lafler When Reviewing IAC Claims in Plea Bargain Cases

by Douglas Ankney

The Supreme Court of New Hampshire announced that it has adopted the approach of Lafler v. Cooper, 566 U.S. 156 (2016), in reviewing claims of ineffective assistance of counsel where the defendant rejected a plea offer and chose to go to trial based upon advice of ...

Colorado Supreme Court: Convictions for Murder and Attempted Murder Violate Double Jeopardy

Jackson, along with other members of the gang known as “Sicc Made,” drove to an apartment complex to kill rival gang member “E.O.” One of ...

Third Circuit Announces Resentencing Under First Step Act Requires Use of § 3553(a) Factors

by Dale Chappell

The U.S. Court of Appeals for the Third Circuit held on September 15, 2020, that when a district court determines that a person is eligible for sentencing relief under the First Step Act, the court must consider all the applicable sentencing factors under 18 U.S.C. § 3553(a), ...

Kansas Supreme Court Reverses Conviction Where Trial Court Refused to Give Self-Defense Instruction

Keyes was tried for the murder of Jimmy Martin. State’s witness Carlo Malone testified that Keyes ordered him to stand outside the backdoor of Martin’s ...

Ninth Circuit: California Conviction Under § 261.5(c) Not Predicate Offense For § 2252(b)(1) Enhancement

by Anthony Accurso

The U.S. Court of Appeals for the Ninth Circuit held that a defendant’s conviction under California Penal Code § 261.5(c) is not a predicate offense triggering a higher mandatory sentencing range under 18 U.S.C. § 2252(b)(1) because the state statute of conviction is not a categorical match ...

COVID-19 Has Profound Effect on Breadth and Scope of Law Enforcement Agencies

 

by Michael Fortino, Ph.D.

With a global pandemic affecting nearly every aspect of traditional government operations, Syracuse University, in late spring of 2020, set out to evaluate the impact COVID-19 has had on the manpower and operations of our most active law enforcement agencies.

Much of this change ...

Sixth Circuit Vacates Sentence Where Upward Variance Based on Criminal History Had Little Bearing on Instant Offense

 

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit vacated the U.S. District Court for the Western District of Michigan’s sentence where the sentence imposed was an upward variance from the Guidelines range based on the defendant’s criminal history, but that history had little bearing on ...

Washington Supreme Court Announces Prohibition Against Blanket Shackling Policies at Pretrial Proceedings

by Anthony Accurso

The Supreme Court of Washington issued a ruling that both clarified the standards governing the use of shackles during all court appearances and criticized the adoption of blanket policies for shackling without an individualized inquiry.

John W. Jackson, Sr. was accused of “assault in the second degree, ...

Second Circuit Announces Compassionate Release Motion by Prisoner Not Constrained by Outdated Guideline § 1B1.13, Application Note 1(D)

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit held on September 25, 2020, that the outdated compassionate release guideline under U.S. Sentencing Guidelines Manual § 1B1.13, Application Note 1(D) (“Application Note 1(D)”), doesn’t control when a compassionate release motion is filed by a federal prisoner, rather ...

Colorado Supreme Court Holds Successfully Completed Deferred Judgment Does Not Count as Conviction Barring Relief From Sex Offender Registration

 

by Matt Clarke 

The en banc Supreme Court of Colorado held that the successful completion of a deferred judgment for a sex offense, which resulted in the dismissal of that charge, does not count as a conviction for purposes of the bar to petitioning a court to ...

$12 Million Settlement Against Louisville, Kentucky

 

by Ed Lyon 

A settlement with family was reached in the death of Breonna Taylor of Kentucky, an unarmed Black woman who was killed when undercover Louisville Metro police “blindly” fired 10 rounds into her apartment on March 13, 2020, the result of a botched raid that began ...

Review Board Has No Power Over NYPD

by Kevin Bliss

The New York Police Department (“NYPD”) has consistently hindered police misconduct allegation investigations, withholding documentation and body-camera footage, as well as advising its police not to cooperate with interviews.

That’s according to an August 2020 article in ProPublica, a nonprofit news organization investigating abuses of power. ...

Shielding Police Identities: A Law That Cuts Both Ways

 

by Michael Fortino, Ph.D.

Marsy’s Law, also known as the “crime victim bill of rights” designed to protect victims from their attackers when the latter are no longer incarcerated, is used by Florida police as a shield to hide an officer’s identity from public access after a violent encounter ...

Exodus of a Baker’s Dozen

 

by Ed Lyon

Since the Memorial Day killing of George Floyd while in police custody, protests against police brutality and systemic racism have grown. And, as various protests and incidents of excessive force by police make headlines, police chiefs are beating a hasty exodus from troubled departments. 

• ...

Proliferation of Police Drones Feeds Big Brother’s Need for Big Data

 

by Anthony Accurso

A recent article by Nick Mottern on Truthout.org highlights the growing trend of big data collection made possible by tech in policing, specifically the proliferation of drones with cameras.

Julie Weiner was at a Black Lives Matter protest in Yonkers, New York, in early June 2020 ...

PBA Cards and the Problem with Police Discretion

 

by Jayson Hawkins

Police officers have recently been under fire for excessive or even deadly force being used in routine arrests and traffic stops, but some critics have begun to draw attention to a different police behavior that involves how and when officers let people go free.

This criticism ...

Thirty-Fourth Conviction Based on Bite Mark Forensics Overturned

by Kevin Bliss

Eddie Lee Howard, Jr. was the thirty-fourth prisoner whose case has been overturned because of the debunked pseudo-science of bite mark forensics. After 30 years in prison, the district attorney now has the choice whether to retry Howard or drop the charges.

Howard, a Black man, was ...

For-Profit Lexipol Takes Over Writing Departmental Policy for Public Safety

by Kevin Bliss

Lexipol, a privately owned company that drafts policies for over 8,100 police departments, fire, EMS, correctional services, and other public safety agencies nationwide is being criticized by reform activists as doing the bare minimum required by law to keep from being sued. They argue that the company ...

Guilt by Google

by Jayson Hawkins

An extraordinary wealth of information is easily available if one only utters the magic word –  “Google.” The problem arises with the realization that though the Google-genie provides information, there is no guarantee that the information is accurate or fair.

Questions about truth and privacy inevitably ...

Technology and Police Reform

by Anthony Accurso

Technology innovation seems to impact every aspect of our lives in the modern era, but what roles should technology play in policing? As the national conversation has turned to police reform, technology’s roles are being questioned anew.

Three technology trends are behind many of our most recent ...

Would the Real Officer Friendly Please Stand Up?

by Casey J. Bastian

In 1966, the official Officer Friendly program was first instituted by the Chicago Police Department. Shortly after inception, the program became sponsored by the Sears-Roebuck Foundation. This educational program was designed for elementary schools, focusing on kids ages 5-8. The Department of Education notes that by ...

North Carolina Supreme Court Announces Harbison Applies When Defense Counsel Implies Defendant’s Guilt Without Prior Consent

 

by Douglas Ankney

The Supreme Court of North Carolina extended State v. Harbison, 337 S.E.2d 504 (N.C. 1985) (holding per se violation of defendant’s constitutional right to effective counsel when counsel concedes guilt to jury without defendant’s prior consent), to include cases where defense counsel impliedly ...

Government Enforcers Are Still Cops

 

by Jayson Hawkins 

The police-involved killing of George Floyd in late May 2020 has proven to be a rallying cry against systemic racism across America. The sight of a man begging to breathe while a cop knelt on his neck for nearly nine minutes has become the defining ...

News in Brief

 

Canada: A trial was underway in October 2020 for Calgary Constable Alex Dunn, who is accused of assault causing bodily harm during a 2017 arrest. “Dalia Kafi, who is Black and was 26 years old at the time, had been arrested on the accusation she breached a court-ordered ...

 

 

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