by Jean Trounstine, Boston Institute for Nonprofit Journalism, September 15, 2020

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 ...

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 Prisoners and Lawyers.

AEDPA and Affirmative Defenses

There is a one-year time limit to file a federal habeas corpus petition under 28 U.S.C. § 2254 (for state prisoners) or a motion under 28 U.S.C. § 2255 (for federal prisoners). Thanks to the Antiterrorism and Effective Death Penalty Act (“AEDPA”) signed into law on April 24, 1996, this time limit applies to prisoners filing for habeas relief in federal court. Don’t let the words “antiterrorism” and “death penalty” confuse you – Congress meant the harsh one-year restriction to apply to all prisoners. Today, courts have gotten away from the highly political aspect of the AEDPA speeding up the death penalty and stopping terrorism and now say that the AEDPA’s purpose is to promote “finality” of convictions and sentences.

The time limit, however, is not an absolute bar. Instead, it’s an “affirmative defense” that the government (a general term for the federal ...

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) – is unconstitutionally vague pursuant to Johnson v. United States, 576 U.S. 591 (2015), and a challenge to a sentence imposed under the residual clause may be collaterally raised via 28 U.S.C. § 2255(f)(3). 

In 1997, Anthony M. Shea was convicted in the U.S. District Court for the District of New Hampshire, inter alia, of armed attempted bank robbery under 18 U.S.C. § 2113(a) and (d) (“Count 1”) and of using a firearm during a crime of violence [the armed attempted bank robbery] under 18 U.S.C. § 924(c) (“Count 2”). But the district court also classified Shea as a “Career Offender” under U.S.S.G. § 4B1.2(a)(2)’s residual clause based on Shea’s prior violent felony convictions for federal armed bank robbery and assault and battery on a police officer in Massachusetts. 

Both U.S.S.G. § 4B1.2(a)(2) and the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B) (“ACCA”), defined “violent felony” as ...

An interview with Harvard health researcher Justin Feldman.

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 the viral video footage of the May encounter: Though the video showed Floyd repeatedly telling the officer he couldn’t breathe, the examiner wrote that there were no signs Floyd had suffocated. Floyd’s death, the examiner added, was likely due to a combination of his underlying medical conditions, being restrained, and “potential intoxicants” in his system.

It wasn’t the first time a medical examiner or coroner shied away from implicating the police following a high-profile killing. After officers in Colorado restrained 23-year-old Elijah McClain and injected him with ketamine last year, a medical examiner’s office said it couldn’t determine whether McClain died from an accident, natural causes, or a homicide. “The decedent was violently struggling with officers who were attempting to restrain him,” the coroner’s report stated. It added that medics believed McClain had “excited delirium,” a controversial diagnosis that is sometimes applied to people whom police believe are acting manic ...

by Douglas Ankney

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 a 2018 civil rights lawsuit filed by Plaintiff’s Counsel on behalf of Joshua Maxton.

Maxton spent over a year in jail until a jury acquitted him of murder. During trial, the defense learned for the first time that the Cincinnati police were informed seven months earlier that DNA evidence from the crime scene resulted in a “CODIS hit” for alternate suspect Dante Foggie. A CODIS hit is a match of DNA submitted to the FBI’s CODIS database, which is a compilation of more than 18 million DNA profiles taken from people convicted of crime across the U.S.

The terms of the settlement provide that an audit team, overseen by court-appointed Special Master Ronald Safer, will conduct “a comprehensive investigation into a subset of homicide cases to determine whether DNA evidence obtained by the CPD was properly disclosed to persons, as is required by law.”

Covering cases from June 2011 to ...

by Dale Chappell

Within weeks, the U.S. Courts of Appeals for the Fourth and Fifth Circuits opened the doors on two decades-old cases, allowing the possibility for habeas corpus relief based on withheld evidence by prosecutors and law enforcement that likely led to wrongful convictions.

The Fifth Circuit Case

The first case was an application to file a “second or successive” (“SOS”) habeas corpus petition in federal court by Robert Gene Will in the Fifth Circuit. On August 5, 2020, a divided panel of that court granted Will permission to file another petition under 28 U.S.C. § 2254 in the district court based on a slew of exculpatory evidence that the prosecution withheld from the defense.

Will was convicted and sentenced to death for the murder of a Harris County (Texas) sheriff’s deputy in 2000. Despite the fact that there were no witnesses or forensic evidence tying him to the crime, a jury still found him guilty. Fifteen years later, Will filed an application in the Fifth Circuit requesting permission to file another habeas corpus petition in federal court to challenge his conviction based on evidence suppressed by the prosecution.

The Fifth Circuit granted Will permission, finding that “there were ...

by Bill Barton

The May 25, 2020, death of George Floyd under the left knee of Derek Chauvin in Minneapolis served as the proverbial “straw that broke the camel’s back” when it came to spurring widespread public outcry over the seemingly endless list of Black Americans killed by police across the country. In an era of cellphone cameras and police bodycams, the incontrovertible evidence of such over-the-top police violence is more and more obvious to anyone who is paying attention. Thousands of primarily non-violent protesters have come out all across the country, risking their health and lives in the midst of the novel coronavirus pandemic to show support for Floyd and the myriad past victims of police brutality. [See: A Nation on the Brink, CLN, July 2020]

Despite the chilling combination of detachment and brutality shown by Chauvin in the profoundly disturbing eight minutes and 46 seconds displayed in the video, not everyone is repelled or angry. Lt. Bob Kroll, president of the Minneapolis police union, certainly wasn’t marching with the protesters. In fact, he has called them part of a “terrorist movement.” He also stated that the four officers fired for their participation in Floyd’s death were ...

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 exchange for his guilty plea, both sides could argue for a sentence between the recommended Guidelines range of 70 to 87 months on a charge of felon in possession of a firearm. At the plea hearing, Harrison stated “we can, like, get this out of the way, like, right now today” because he did not “even [want to] go to trial.”

But upon hearing that a Guidelines-range sentence was all that the Government was offering, the district judge said “[t]hat’s probably worse than if he got convicted right? I mean, because if he gets convicted, he can argue for less, right?” The judge excused the prosecutor from the courtroom and then told Harrison that the federal system “sucks” and is “really harsh.”

The judge then offered advice that if Harrison were to plead guilty he would be sentenced by a less lenient judge, but if Harrison chose to go to ...

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 River police officer Michael Pessoa submitted an arrest report, claiming the arrestee was noncompliant and threatened to punch the officers whereupon Pessoa used force (an “arm bar take down”) to take the arrestee to the ground. Because the arrestee was noncompliant, Pessoa added a charge of resisting arrest. Two additional Fall River officers were present during the arrest, and they each submitted use-of-force reports corroborating Pessoa’s account and supporting the additional charge of resisting arrest.

Shortly thereafter, surveillance video revealed that the arrestee had been compliant when Pessoa approached and punched the man on the left side of his head, and then, Pessoa violently took him to the ground in a manner not using the arm bar takedown. An ensuing criminal investigation resulted in 15 indictments against Pessoa. During the course of the investigation, the district attorney obtained orders of immunity pursuant to G. L. C. 233, §§ 20C-20G for ...

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 for killing Nedra Johnson and Bradley Adams and one count of being a felon in possession of a firearm.

During the trial, the court instructed the jury that it could find Nickson guilty or not guilty on each count of first-degree murder, but if the jury found him not guilty, it must then consider whether he was guilty of second-degree murder.

The jury was sent out for deliberations and sent a note back that it was deadlocked. The court recalled the foreperson and instructed the jury to “return the verdict on whatever counts you’ve decided on and then come back.” The jury returned and advised that it had unanimously agreed to acquit Nickson for first-degree murder on counts one and two, but it remained deadlocked as to second-degree murder on those counts and the possession count.

The court impressed upon the jury the necessity of returning a verdict and ordered ...

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 Charlene) by shooting her in the chest with a shotgun. He was charged with several felonies, including murder.

The People filed a motion in limine to admit out-of-court statements Charlene had made to friends and family members describing Quintanilla’s domestic violence toward her over the years of their relationship. The trial court ordered a foundational hearing to determine if the statements could be admitted as evidence under the hearsay exception in Evidence Code § 1390. Under § 1390, out-of-court statements made by a person unavailable to testify at trial may be admitted as evidence if the defendant “engaged ... in wrongdoing that was intended to, and did, procure the unavailability of” the witness. At the hearing, the trial court heard testimony from:

• Charlene’s aunt who testified that Charlene said Quintanilla strangled her twice (once with his bare hands and once with a belt causing her to lose consciousness); Quintanilla ...

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 to interactions with the criminal justice system. Specifically, CLN’s coverage includes, but is not limited to, state and federal criminal law and procedure, constitutional rights, police and prosecutorial misconduct, official abuse of power, habeas corpus relief, ineffective assistance of counsel, sentencing errors and reform, militarization of police, surveillance state, junk science, wrongful convictions, false confessions, witness misidentification, Brady violations, paid/incentivized informants, plea agreements, asset forfeiture, capital punishment, search and seizure, Miranda warnings, sex offender registries, post-release supervision and control, and due process rights. 

Our mission at CLN is to provide readers with practical legal information that can be used to challenge convictions, sentences, and conditions of release where warranted. The primary means of educating and informing readers is through coverage of state and federal appellate court decisions dealing with criminal law, procedure, and associated constitutional rights. We’re confident that the case law information we provide is of great value ...

by Dale Chappell

More than half of the cases where innocent people were wrongfully prosecuted and imprisoned over the last three decades involved misconduct by the police and/or prosecutors. This comes from a new report by the National Registry of Exonerations (“NRE”) released in September 2020, compiling data on every exoneration since 1989.

Out of 2,400 cases analyzed by the NRE, 54 percent were the result of misconduct by law enforcement and prosecutors, and the more severe the crime, the more likely misconduct played a role. Overall, cops and prosecutors evenly split the misconduct. But the discipline was largely on law enforcement, with prosecutors rarely, if ever, taking the blame.

The 218-page report details the most common types of misconduct, giving examples of cases and the fate of the officials responsible for the misconduct. It then notes any discipline handed out and concludes with suggestions on why misconduct occurs and what can be done to prevent it.

Background

The NRE manages an archive of all known exonerations in the U.S. since 1989. So far, that comes to 2,663 cases. The report, though, focuses on all the cases up to February 2019. It also limits misconduct to government officials who contributed ...

by Matt Clarke

On July 20, 2020, the U.S. Court of Appeals for the Seventh Circuit held that a prior state drug conviction under a statute that defined the drug more broadly than the equivalent federal statute could be used to enhance a federal drug crime sentence as a career offender under U.S.S.G. §§ 4Bl.l(a) and 4B1.2(b) but could not be used as a prior drug crime to enhance the sentence under 21 U.S.C. §§ 84l(b)(l)(C) and 851. It vacated the sentence and remanded the case.

An Illinois police task force found Nathaniel Ruth in possession of cocaine and a gun. He was indicted for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(l), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 84l(a)(l), (b)(l)(C). The Government notified Ruth that it would be using a 2006 Illinois conviction for possession of a controlled substance (cocaine) with intent to distribute, in violation of 720 ILCS 570/40l(c)(2), to enhance his maximum sentence from 20 to 30 years under 21 U.S.C. § 84l(b)(l)(C). Ruth did not object.

The probation office used the same 2006 state drug conviction, along with another prior conviction, to ...

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 of second-degree murder. The complaining witness (identified as “CW”) was a Japanese national. She had received a text message from a woman calling herself Ai Akanishi, asking the CW to meet her for drinks. The message arrived via the LINE application using the CW’s personal LINE identification (“LINE ID”). Even though the CW did not know anyone named Akanishi and hadn’t given her LINE ID to anyone by that name, she agreed to the meeting.

The CW rode her bicycle to the designated location. A man speaking in broken Japanese (“spoken by a nonnative speaker”) directed her where to park her bicycle. While she was parking her bike, the man stabbed her several times. She fled to a nearby business, and the owners called police.

When describing her assailant, the CW told police her attacker could have been a woman because the voice was high for a male. She later ...

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 Rene Izaguirre pleaded guilty to a federal marijuana charge in 2013, he absconded before sentencing. Five years later, he was finally sentenced for that offense when he was arrested for another drug charge. But now he had a FTA conviction to add to that marijuana sentence.

At sentencing, the U.S. District Court for the Southern District of Texas relied on the Government’s explanation that the FTA sentence was the same Guidelines sentencing range (“GSR”) as the marijuana conviction and that the two sentences had to be consecutive. The court then imposed consecutive 108-month sentences for each offense. Izaguirre’s lawyer never objected and, in fact, agreed with this interpretation.

On appeal, Izaguirre argued that this was error because the USSG requires the FTA sentence to run consecutive but only as part of the total GSR, not stacked at the end. The Fifth Circuit agreed, reiterating that a court commits “significant procedural ...

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 conviction. 

Donald Eugene Huckabay was arrested on May 25, 2019, and charged with misdemeanor DUI. The next day, he was released on personal recognizance. The People then amended his charge to a class 4 felony DUI because he had at least three prior convictions for DUI. 

On December 30, 2019, Huckabay moved for a preliminary hearing under § 16-5-301(1)(a), C.R.S. (2019) and Crim. P. 7(h)(1) – which is a judicial determination of whether there is probable cause sufficient to subject the defendant to trial. 

In People v. Tafoya, 434 P.3d 1193 (Colo. 2019), the Colorado Supreme Court established that a defendant who was charged with a class 4 felony DUI, and was in custody, was entitled to a preliminary hearing. This was important because the crime of felony DUI results from a recent statutory amendment.

The district court denied Huckabay’s motion, relying on Tafoya because Huckabay ...

by Anthony Accurso

The U.S. Court of Appeals for the Second Circuit reversed a lower court order denying defendant’s evidence suppression motion on the grounds that a photo, which provided very little identifying information, was insufficient grounds to stop and investigate.

On September 2, 2017, Jaquan Walker and Javone Hopkins were walking through the Central Business District of Troy, New York, around 6:50 p.m. when Sergeant Peter Montanino noticed them.

Recalling an email he received the day before of a photo of a suspect and the phrase “trying to ID suspect #2 in this photo,” Montanino compared Walker and Hopkins and found they were “medium to dark skin toned black males. They were thin build. Both were wearing glasses at the time. One had little longer length, longer than shoulder length hair. The other one had what appeared to be short hair.... Both had facial hair. Both appeared to have goatees.”

Montanino called his subordinates, officers Owen Conway and Martin Furciniti, and asked them to stop and ID the pedestrians. The pair pulled up in front of Walker and Hopkins while Montanino pulled up behind them. The officers ordered them to stop and produce identification, which was used to run ...

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 consider his post-sentencing good-conduct argument. 

Shawn Williams pleaded guilty in 2005 to possession with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a). The Government filed an enhancement under § 851 because of his prior felony drug conviction, raising his mandatory minimum to 20 years.

Based on a total offense level of 34 and a criminal history category of VI, his Guidelines range was 262 to 327 months. He was sentenced to 262 months’ imprisonment to be followed by 10 years of supervision.

In 2018, the passage of the First Step Act modified his effective statutory mandatory minimum sentence to 10 years, so Williams asked to be resentenced. In his motion, he argued, among other things, that his conduct while in prison warranted a reduction. Williams highlighted that he passed every drug test he had taken, held the same prison job ...

by Anthony Accurso

Geofence warrants have become a common way for law enforcement to link a crime to a suspect using data gathered from smartphones. However, this process is legally dubious, and two federal judges from the district court in Chicago recently rejected issuing such warrants.

Such warrants are sometimes also called “reverse warrants” because they are like a normal warrant but in reverse. Normally, law enforcement officers (“LEOs”) have a suspect or specific details about a suspect, and they have some evidence that person committed a crime. They present this to a magistrate judge who then authorizes them to look for more conclusive evidence in very specific places.

In contrast, geofence warrants work backward from where a crime is committed, and LEOs then obtain an obscene amount of information on thousands of people in the hope they can sort potential suspects from that data. They then investigate those leads and apply for a normal warrant when they have amassed enough details to narrow it down to the person(s) they believe committed the crime.

Magistrate Judge David M. Weisman was called upon to authorize such a warrant after some pharmaceuticals were stolen. The government applied to obtain data gathered by ...

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 rented the outbuilding on Parischere (Paris) Hughes’ property in 2016. Thomas paid $400 per month to rent and live in the space with all of his belongings. Because the outbuilding did not have “running water, plumbing, a bathroom, or kitchen facilities,” Thomas used these facilities in Paris’ home. When he was not there, he kept a lock on the door to his space.

Prior to moving in, Thomas was made aware that Paris was on probation. Her probation officer, Gen Stasiak, was made aware of and approved the rental agreement.

Paris missed two drug/alcohol screenings, one each on December 16 and 19, and Stasiak suspected she had relapsed. Stasiak invoked a condition of her probation that states in relevant part that, “all places in the defendant’s residence where the defendant has access are subject to [warrantless] search, even those private rooms of other persons with whom the defendant resides, unless ...

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 is up to the district court to make that decision based on evidence and not mere speculation by the Government.

Yuniel Lima-Rivero pleaded guilty to conspiracy to possess methamphetamine with intent to distribute under 18 U.S.C. § 856 and was sentenced to 15 years in federal prison without parole.

At sentencing, the U.S. District Court for the Northern District of Texas rejected Lima-Rivero’s request for application of the safety valve allowing a lower sentence. The Government argued that he failed to qualify for the safety valve because he did not truthfully provide all information known about the offense. Indeed, at sentencing, a DEA agent testified that Lima-Rivero was “less than forthcoming regarding many things.”

The district judge said, “I think it’s up to the government to determine if the defendant has complied with” the safety valve provisions. “I don’t know how you get around that,” the judge said and denied ...

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 moved his camper to a friend’s property in Dresden, Maine, in May 2018 and did not notify the local sheriff’s office of the change. Proctor had prior sex offenses and was thus indicted in November 2018 for failing to register in violation of 34-A M.R.S. § 11222 (1-B) (2020). Proctor was convicted and sentenced to 90 days’ imprisonment. The execution of the sentence was stayed pending resolution of his appeal as to whether SORNA of 1999 was unconstitutional as applied to him.

In October 1990, Proctor was convicted of four counts of unlawful sexual contact in violation of 17-A M.R.S.A. § 255 (Supp. 1990). He was sentenced to five years of imprisonment, with all but one year suspended and four years of probation. However, he was not then required to register as a sex offender because Maine did not pass its first registration law until 1991 (“SORNA of 1991”).

In ...

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. Day, Jr., was charged in September 2013 with conspiracy to commit wire fraud and making false statements in loan and credit applications. In 2012, Day participated in a fraudulent scheme disguised as a “credit repair service.” Day sold misappropriated Social Security numbers to his “customers” with instructions on how to use their new “credit profile number” to apply for new retail loans.

Originally represented by federal defender Monica Foster, the Government in June 2014 offered a plea deal that provided for Day to plead to the conspiracy count and dismissal of the other count. It also agreed to an offense level and criminal history category that put Day into a Guidelines range of 51 to 63 months in prison. Foster believed the Government may agree to a downward departure to 40 months due to Day’s substantial assistance. She advised Day to accept the offer because he had no viable defense, ...

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 counsel.

Keith Fitzgerald was indicted on five counts of theft by unlawful taking (Class A felonies) for using his power of attorney to transfer money from his father’s accounts into accounts in his name. Each count carries a penalty of 7.5 to 15 years. The State notified Fitzgerald in a plea offer that the sentence enhancements of RSA 651:6, III (2016) could be applied because his father was over 65 years old. Unable to reach an agreement at the first settlement conference, the parties filed a motion stating they continue to “engage[ ] in productive settlement discussions [and] are in agreement that the defendant have some time to consider the State’s current offer.” 

Ultimately, the State made its final offer of two years’ incarceration in a county facility, followed by two years of home confinement in exchange for a guilty plea to all five counts.

Defense counsel advised Fitzgerald ...

by Douglas Ankney

The Supreme Court of Colorado held that Brandon Jackson’s convictions for both murder and attempted murder violate the protections against 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 Jackson’s cohorts spotted “Y.M.” exiting a vehicle similar to that driven by E.O. Mistaking Y.M. for E.O., the cohort shot Y.M. twice in the head, killing him instantly.

Relying on a complicity theory, the People indicted Jackson on several charges, including first-degree murder (naming Y.M. as the victim) and attempted first-degree murder (naming E.O. as the victim). The jury found Jackson guilty on all charges. The trial court sentenced him to life in prison without parole on the first-degree murder conviction and to a consecutive term of 24 years on the attempted murder conviction.

Jackson appealed, arguing, inter alia, that the murder and attempted murder convictions violated his state and federal constitutional protections against double jeopardy. A division of the court of appeals, believing there were two victims and relying on the doctrine of “transferred intent,” concluded that the two convictions violated double jeopardy. The court of appeals vacated ...

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), even if the new Guidelines range is the same as the old range.

After the U.S. District Court for the Middle District of Pennsylvania found that Jamel Easter qualified for sentencing relief under the First Step Act, it recalculated his Guidelines sentencing range (“GSR”), found that it didn’t change after applying the new law, and refused to go any lower. Easter was convicted of a crack cocaine offense in 2008, under 21 U.S.C. § 841(a), (b)(1)(B), and a consecutive sentence under 18 U.S.C. 924(c) for possessing a firearm in furtherance of that drug offense.

Originally sentenced to a total of 19 years (14 for the drugs and five for the firearm), Easter got a reduction in 2015 when Amendment 782 reduced his crack cocaine offense level by two points. His sentence was reduced to just over 16 years total with the reduction. When the First Step Act made the Fair ...

by Douglas Ankney

The Supreme Court of Kansas reversed Michael Alan Keyes’ murder conviction because the district court refused to give his requested 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 mobile home while Keyes entered the trailer armed with a pistol. He testified that he poked his head inside the door, but it was too dark to see anything. He heard an exchange of words between Keyes and Martin, culminating with Martin telling Keyes “do what you got to do.” Martin testified that he heard a gunshot and that he later helped Keyes bury Martin’s body.

Keyes testified that he neither ordered Malone to stand outside the backdoor nor was Malone even present. Keyes testified that Tina Martin – the owner of the property – had instructed him (Keyes) to evict Martin. Because Keyes knew that Martin was known to be armed with a knife, Keyes armed himself with the pistol. He confronted Martin inside the mobile home and told him he had to move. Martin threatened to kill Keyes, grabbed a knife, and began slashing it toward Keyes. Keyes ...

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 to the general federal definition of sexual abuse of a minor.

Chad Carl Jaycox pleaded guilty in 2018 to receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). Upon issuance of the PSR, the court decided that his prior conviction for “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” under § 261.5(c) qualified him for an enhanced sentencing range of 15 to 40 years, up from 5 to 20 without a qualifying prior.

Jaycox objected to the enhancement, but the district court upheld the enhancement, citing United States v. Sullivan, 797 F.3d 623 (9th Cir. 2015) (holding that a conviction under Section 261.5(d) triggered the enhancement). Though his Guidelines range was 262 to 327 months, the court sentenced him to 240. He timely filed a direct appeal.

The Ninth Circuit had to determine whether § 261.5(c) is sufficiently different ...

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 seemed to follow the Trump administration’s March 15, 2020, decision to adopt a new “work from home” initiative for most federal agencies. Criminal referrals in the first half of March 2020 averaged about 4,500 per week, prior to the onset of the novel coronavirus and the “work from home” mandate. Shortly thereafter, communities experienced a reduction in both crimes and arrests, according to the data. By the end of March 2020, agency arrest referrals landing on U.S. Attorneys’ desks dropped to 1,800 per week, a dramatic decrease by more than half.

Following a Freedom of Information Act (“FOIA”) request for Department of Justice (“DOJ”) records, Syracuse University utilized the “Transactional Records Access Clearinghouse” (“TRAC”) to obtain agency production numbers, which produced surprising results. The numbers led law enforcement analysts to grow concerned that the virus may have resulted in a paradigm shift in both the quantity of criminal referrals as ...

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 the instant offense.

In 2003, 21-year-old Manndrell Lee was sentenced to 12 months in prison after pleading guilty to second degree Criminal Sexual Conduct (“CSC”). He completed his sentence. Then from 2004 to 2018, Lee consistently violated the conditions of his parole – usually by failing to comply with sex offender registration laws and the terms of his location monitoring. He was punished with incarceration for each of those violations.

In 2018, Lee pleaded guilty to possession of a stolen firearm in violation of 18 U.S.C. § 922(j). His advisory Guidelines range, based on his criminal history score of 11, was 30 to 37 months’ imprisonment. But the district court decided an upward variance was necessary because of: (1) Lee’s “long and serious criminal history,” (2) his parole violations and disciplinary violations while in custody, and (3) his 2003 CSC offense. The district court imposed a sentence of 60 months ...

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, domestic violence” after allegedly strangling his wife during an argument in early 2017. During Jackson’s pre-trial hearings, he was required to be shackled and in a jail uniform. During the trial, he was allowed to wear street clothes but was required to wear a leg “brace” that prevented him from walking normally or potentially escaping.

Jackson’s attorney objected to this treatment and filed a motion requesting the court conduct an individualized hearing on the need to restrain Jackson during appearances. On August 4, 2017, the Clallam County Superior Court issued an opinion on Jackson’s motion, as well as similar motions by other defendants then pending, which adopted the policies of the Clallam County Sheriff’s Office on the restraint and shackling of in-custody defendants until a viable alternative, such as videoconferencing, was available.

During his trial, Jackson raised concerns that the jury could see his leg brace under his clothing, and ...

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 than the warden.

When Jeremy Zullo was sentenced a decade ago, the sentencing judge said, “it’s difficult for me to sentence somebody like you to 10 years in prison frankly.” The judge recognized that such a long sentence didn’t fit Zullo’s drug and firearm conviction with his clean criminal history but was obligated to impose at least 10 years, giving him 10 and a half years. The Government then appealed that sentence, and on remand, the judge was ordered to hand Zullo a five-year mandatory sentence in addition to the mandatory 10-year sentence for a total of 15 years in prison without parole.

After the First Step Act passed in 2018, opening the door for prisoners to file for compassionate release when the federal Bureau of Prisons (“BOP”) refuses to do so, Zullo filed a motion under 18 U.S.C. § 3582, giving the sentencing judge a chance to reduce his ...

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 discontinue requiring sex offender registration for a person who “is convicted” of more than one sex offense set forth in § 16-22-113(3)(c), C.R.S. (2019), of the Colorado Sex Offender Registration Act. 

As part of a plea agreement, Brian Keith McCulley pleaded guilty to one count each of second-degree sexual assault in violation of 18-3-403(l)(a), C.R.S. (2000), a fourth-degree felony, and third-degree sexual assault in violation of 18-3-404(l)(c), C.R.S. (2000), a class 1 misdemeanor.

He was sentenced to a four-year deferred judgment for the felony and received a 60-day jail sentence plus two years of probation for the misdemeanor. The probation required him to comply with the terms of the deferred judgment, and one of those terms was that he register as a sex offender.

McCulley successfully completed the terms of the felony deferred judgment, and the court ordered his guilty plea withdrawn and dismissed the felony charge.

Thus, the ...

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 as Taylor and her boyfriend Kenneth Walker were sleeping. [See August 2020 CLN, p.48.]

The family’s lawsuit, resolved in mid-September 2020, cites battery, wrongful death, excessive force, and gross negligence. Taylor received no medical attention for more than 20 minutes after she was wounded, dispatch logs reveal, The Courier Journal reports.

Taylor was an emergency medical technician who battled for victims of the novel coronavirus before she became the victim of a no-knock warrant by overzealous cops.

The Taylor case got more exposure after the May 2020 killing of George Floyd. The video of Minneapolis, Minnesota, Officer Derek Chauvin, kneeling on Floyd’s neck for nearly nine minutes brought awareness to the everyday perils Black citizens face from police. Her death set off protests across the world along with Floyd’s. 

Representing Taylor’s family were Lonita Baker and Benjamin Crump, who brought a civil rights deprivation and wrongful death ...

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. With the assistance of THE CITY, WNYC/Gothamist and The Marshall Project, it investigated the NYPD and its historical lack of cooperation with the Civilian Complaint Review Board (“CCRB”), leading to a lack of discipline for misconduct and a large number of cases resolved as “inconclusive.”

The CCRB in New York was created in the 1950s in response to a coalition of advocacy groups in the city that wanted accountability in “police misconduct in their relations with Puerto Ricans and Negros specifically.” Relations between the two have been strained since the beginning.

Sometime in the 1990s, New York’s first Black mayor, David Dinkins, made the review board independent from the NYPD and gave it subpoena powers. These powers allowed the CCRB to “compel the attendance of witnesses and require the production of such records and other material as are necessary for the investigation of complaints.”

Activists say the problem is ...

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 with a suspect. 

Responding to a call about a fatal stabbing, police chased down a man on the south side of Tallahassee. Natosha “Tony” McDade, a Black transgender man, pulled out a gun when cornered by police and was subsequently shot dead by the pursuing officer on May 27, 2020. The Tallahassee Police Department, citing Marsy’s Law, refused to release the identity of the officer involved in the incident, claiming him “the victim of a crime ... his identity should therefore be protected” as reported by motherjones.com.

Immediately after the shooting, according to the Florida Police Benevolent Association (“PBA”), the officer “was threatened by a person at the scene, and there has been ongoing animosity expressed against him on social media since he was forced to defend his own life.” The PBA also cited the current toxic anti-police sentiment being expressed nationally and globally as a result of various ...

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. 

• In California, Los Angeles Schools’ Police Chief Todd Chamberlain resigned after defunding of his department by 33 percent resulted in 40 vacancies remaining unfilled and a force reduction of 65 officers. 

• In Georgia, Atlanta Police Chief Erika Shields resigned after Rayshard Brooks was fatally shot by now-fired police Officer Garrett Rolfe. Although Mayor Keisha Lance Bottoms accepted the resignation, she stated Shields would continue to serve within the department in a position “yet to be determined,” turning the resignation into a demotion. 

• In Kentucky, Louisville Mayor Greg Fischer fired Chief Steve Conrad after cops and National Guard soldiers shot restaurateur David McAtee to death. Conrad was fired because cops were not wearing their body cams, not because McAtee died. 

• Prince George’s County, Maryland, Police Chief Hank Stawinski resigned after complaints by 13 minority officers were aired by the American Civil Liberties Union. They had ...

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 when she noticed a drone in the sky, seemingly monitoring the protest. After some digging, she learned the drone was operated by the Yonkers police.

Weiner is concerned that using drones, possibly in connection with other tech, such as facial recognition and predictive policing, “may be a violation of our rights to freely assemble, and to be free from unwarranted searches and seizures.” 

Weiner is right to be concerned. While Yonkers Police Commissioner John Mueller has not put in place any formal policy for managing what is captured by drones or with whom that data is shared, Mueller is also considering purchasing police body cameras and had been favoring those made by Axon Enterprise, Inc. (formerly known as TASER International).

Axon, which is purported to control 80 percent of the police bodycam market, sells other law enforcement services as well. Axon is in partnership with DJI – the manufacturer ...

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 covers a broad range of behavior, but some of the most vocal protests concern PBA cards. These cards get their name from the Police Benevolent Association, which is the largest police union in New York City and a major issuer of cards. The cards carry the union logo, along with the name and phone number of the officer it was issued to. PBA members get up to 20 cards each year, and they may give them to any friend or family member. 

These civilians can then present the card when stopped by police for minor infractions, thus earning the cards their nickname: “get out of jail free cards.” The idea is that when an officer sees that the person he has stopped has some personal connection with a fellow officer, then he will be inclined to be lenient. 

There is no data on how effective the cards are, ...

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 arrested in 1992 in Columbus, Mississippi, for the murder of an elderly White woman. Dr. Steven Hayne performed the autopsies where he testified the second was required because there “was some question that there could be injuries inflicted by teeth.” After the second autopsy, he referred the case to Dr. Michael West, who used his patented method of exposing the body to ultraviolet light while wearing special glasses where he found bite marks he testified matched Howard’s teeth on the victim’s neck, arm, and breast. Howard was convicted and sentenced to death.

Represented by the Mississippi Innocence Project, Howard was granted in 2010 the right to have DNA analysis conducted on the evidence. Results excluded Howard from every piece of evidence tested. More importantly, DNA analysis found no saliva or male DNA on the victim’s nightgown where the underlying bite marks were said to have been found.

“The DNA testing ...

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 is only concerned about its bottom line and hinders transparency at a time when reform measures are trying to hold police to a higher standard.

Started in 2003 by two retired police officers who later become lawyers, Lexipol charges the city, county, or state a fee to evaluate current departmental policies and rewrite them to comply with changing laws. The company brochure boasts: “a cost-effective solution that provides comprehensive policies and policy updates, Daily Training Bulletins to help officers apply policies, and reporting features to track policy acknowledgment.”

One of the ultimate goals of Lexipol is to limit liability for those public safety services they serve. Their material is advertised as what is necessary for “legally defensive content,” protecting agencies from lawsuits.

A senior staff attorney at the ACLU, Carl Takei, said, “The entire policy philosophy of Lexipol is based on the idea that if the policies just describe the ...

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 accompany any consideration of the new digitally connected world, and there are few areas where these questions produce more troubling answers than in the realm of online criminal records. 

In the not-so-distant past, the maintenance of criminal records was the responsibility of the police agencies and courts that produced those records, but in the internet age, government sites represent only a fraction of the available criminal records online. Companies that specialize in brokering data pay government agencies and courts for bulk sets of arrest reports and other records, and the data are collated with other public records before being sold to background check services, consumer research companies, and sometimes even police agencies. There are apps that post updates about sex offenders in the neighborhood, and websites that put up recent arrestee mugshots charge a fortune to have the photos removed. 

The primary causes of this shift can be ...

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 innovations: cheap data storage and databases, artificial intelligence, and near ubiquitous video and audio recording devices. This is equally true in tech recently adopted for use by law policing agencies. Cheap, high-definition cameras are mounted on Tasers, vehicle dashboards, drones, buildings, and officers’ bodies. That video is stored, seemingly indefinitely, in cloud databases. The video is combed through by AI algorithms to create new data points used by other AIs to make, or aid in making, decisions in a policing context.

But, like so many other areas of our lives affected by innovation, we never stopped to ask what purposes these tools serve, and whether those purposes are at odds with our other, closely held values like privacy or free speech.

Nine years ago, Santa Cruz, California, was one of the first police departments to adopt software that implemented “predictive policing.” The thought was that they could feed enough data ...

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 1979, the Officer Friendly program was in 233 communities. That number expanded to 350 at the height of the program’s popularity in the late 1980s, prospectively influencing upward of 1.5 million youths. The cost to the foundation had risen to $400,000 per year.

On the surface, the program’s purpose seems entirely benevolent, viz., providing safety education while positioning the police officer as a trustworthy and kind savior of the community. Plausibly accepted as who could possibly object to safety education for our children?

In reality, the Officer Friendly program is viewed very differently depending on whom you ask. So who is the real Officer Friendly? Sadly, the response seems to depend on race. Is Officer Friendly the idealized vision in the 1958 Norman Rockwell depiction, The Runaway, where a cop is seen comforting a small White child, coaxing him to return home? Or is it the 1965 photograph ...

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 – rather than expressly – admits the defendant is guilty of a charged offense.

Anton Thurman McAllister repeatedly slapped his live-in girlfriend, Stephanie Leonard, outside a gas station. McAllister then forced Leonard back to their apartment. An attendant at the gas station reported the altercation.

Once inside the apartment, McAllister continued to hit Leonard and twice attempted to suffocate her. McAllister then forced Leonard into the bathtub where he washed the blood from Leonard’s body. Afterward, they went to bed and had sexual intercourse.

The following evening, officers located McAllister. He agreed to accompany the officers to the police station for a non-custodial interview. The interview was videotaped, during which McAllister stated he: (1) pushed Leonard to the ground outside the gas station, (2) backhanded her in the face, (3) smacked her in the lip, (4) grabbed her in the mouth, (5) bit her hand, and (6) “smacked [her] ass ...

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 image of abuse by law enforcement, and thousands have taken to the streets nationwide to protest. Advocates were outraged, and those who had been on the fence about the need for reforms began to find the notion that “cops are just doing their jobs” hard to swallow. The air was ripe for change. 

The debate over what form that change should take has raged since. 

As early as June, calls to either “defund” or “abolish” police started to gain traction. New York City, for one, responded by reallocating a billion dollars from the police force budget to agencies like mental health and emergency services, which was intended to shift responsibility for part of the police caseload into more appropriate venues. It is too early to determine the effectiveness of this move, but the political right responded immediately by forecasting chaos and anarchy 

while those on the left ...

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 curfew,” cbc.ca reports. She was out past curfew while at a friend’s home braiding hair. A pal offered to drive her home but police stopped the driver for an illegal turn. Kafi was arrested for breaching curfew and obstruction of justice. While having her arrest photo taken, Dunn tried to remove her hair scarf. One of the handcuffs, Dunn testified, had slid up toward Kafi’s elbow and she grabbed his hand. Video of Dunn throwing the handcuffed suspect face-first to the ground was released to the media, cbc.ca reports. Staff Sgt. Gordon Macdonald called it a “judo-style throw,” and he advised Dunn “that it was the worst use of force that I had seen.” 

Florida: Detective James Suarez has resigned from the Palm Beach County Sheriff’s Office after an investigation “concluded he took checks from a charity gutted by a fellow deputy who’s now in prison,” sheriff’s office ...