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Criminal Legal News: February, 2020

Issue PDF
Volume 3, Number 2

In this issue:

  1. Why Are Cops Around the World Using This Outlandish Mind-Reading Tool? (p 1)
  2. From the Editor (p 10)
  3. California Supreme Court Holds Confidential Personnel Information of Officers on Internal ‘Brady List’ Can Be Disclosed to Prosecutors (p 10)
  4. Oregon Parole Board Must Explain Reason for Extended Parole Postponement Period (p 11)
  5. Nullify Government Tyranny: In 2020, Harness the Power of Your Discontent (p 12)
  6. First Circuit: Application of Subsequent Guidelines Manual to a Prior, Ungrouped Offense Violates Ex Post Facto Clause (p 15)
  7. California Supreme Court Overturns Its Warrantless Identification Search Precedent (p 16)
  8. Federal District Court Grants § 2255 Motion, Finds IAC for Failure to Object to Government’s ‘Misstatement of Law’ During Trial (p 17)
  9. Indiana Supreme Court Announces Analytical Framework When Determining Whether Punitive In Rem Forfeiture Violates Excessive Fines Clause (p 18)
  10. Hundreds of Cop Shootings Yearly in Arizona (p 18)
  11. Ninth Circuit Holds Evidence from Martinez Hearing Can Be Considered in Granting Habeas Relief, Despite Bar Against Evidentiary Hearings on Facts Not Raised Below (p 20)
  12. To Compute, or Not to Compute: Algorithm-Driven AI in the Criminal Justice System (p 21)
  13. Washington Supreme Court Announces Rules for Trial Courts When Implicit Racial Bias Alleged in Jury Decision (p 22)
  14. Thousands of Convictions Questioned; Prisoners Released Show Why Law Enforcement Technology Must Be Tested by Third Parties (p 23)
  15. In Case of First Impression, Pennsylvania Supreme Court Holds Compelling Suspect to Disclose Computer Password Is Testimonial in Nature and Violates Fifth Amendment’s Privilege Against Self Incrimination (p 24)
  16. New York Criminal Record-Sealing Program Revisited (p 25)
  17. Which Makes Us Safer? Residency Restrictions or Enhanced Rehabilitation for Former Sexual Offenders? (p 26)
  18. 11th Circuit: General Threat of Harm Inherent in Every Bank Robbery Doesn’t Qualify for ‘Threat-of-Death’ Enhancement (p 27)
  19. Hundreds of Dishonest Cops Called as Witnesses (p 28)
  20. Washington Supreme Court Affirms Warrantless Search of CSLI Data but Holds Convictions for Both First-degree Rape and Felony Murder Predicated on Rape Violate Double Jeopardy (p 30)
  21. Alaska Police Department Run by Former Convicts (p 31)
  22. Oregon Supreme Court: Conviction for Interfering with Police Requires Lawful Order (p 32)
  23. Montana Supreme Court Holds Automatic 35% Drug Fine Facially Unconstitutional (p 32)
  24. Sixth Circuit: Grant of Habeas on Grounds that State Trial Court Violated Defendant’s Right to Present a Complete Defense (p 34)
  25. Second Circuit Affirms District Court’s Decision Setting Aside Guilty Verdict in a Case of Irreconcilably Inconsistent Verdicts (p 35)
  26. Illinois Supreme Court: Statute Banning All Sex Offenders on Probation From Accessing or Using Social Networking Websites Facially Unconstitutional (p 36)
  27. Idaho Supreme Court: Where Police Were Unaware of Probationer’s Fourth Amendment Waiver Until After Unreasonable Search, Waiver Won’t Make Search Reasonable (p 37)
  28. Book Review: The Habeas Citebook: Prosecutorial Misconduct Is an Invaluable Resource for Challenging Prosecutorial Misconduct (p 38)
  29. Fifth Circuit Holds Davis Retroactive, Conspiracy Cannot Support 924(c) Convictions (p 39)
  30. Colorado Supreme Court Reverses Conviction Because Trial Court Failed to Give No-Adverse-Inference Jury Instruction for Choosing Not to Testify (p 40)
  31. Georgia Supreme Court Clarifies What a Defendant Must ‘Admit’ Before Raising an Affirmative Defense (p 41)
  32. New York Court of Appeals: Police Officers May be Cross-Examined About Acts of Dishonesty Like Any Other Witness (p 42)
  33. Fourth Circuit Clarifies How to Bring a First Step Act Motion Applying the Fair Sentencing Act (p 42)
  34. 3d Circuit: Counsel’s Failure to Investigate Drug Properties for Analogous Drug Comparison at Sentencing Constitutes Ineffective Assistance (p 43)
  35. South Carolina Supreme Court Grants New Trial Due to Prosecutor’s Prejudicial Closing Remarks (p 44)
  36. First Circuit Vacates Conviction Because Sister had Neither Actual nor Apparent Authority to Consent to Search of Brother’s Bags (p 45)
  37. In Case of First Impression, Fourth Circuit Holds First Step Act Applies to Those Serving Supervised Release Revocation Sentences (p 46)
  38. Court Rulings Condemning Cash Bail Systems Increasing (p 47)
  39. Sheriff Ackal’s Corruption Continues to Plague Louisiana Parish (p 47)
  40. Eighth Circuit: Defendant Who Pleaded Guilty to State Felonies Didn’t Know He Couldn’t Possess Firearms Prior to Sentencing Because He Didn’t Know He Had Been Convicted (p 48)
  41. Freedom or Restitution for the Wrongfully Convicted (p 48)
  42. Oklahoma: Cocaine Bust Was Really Only Powdered Milk (p 50)
  43. News in Brief (p 50)

Why Are Cops Around the World Using This Outlandish Mind-Reading Tool?

The creator of Scientific Content Analysis, or SCAN, says the tool can identify deception. Law enforcement has used his method for decades, even though there’s no reliable science behind it. Even the CIA and FBI have bought in.

 

by Ken Armstrong, ProPublica, and Christian Sheckler, South Bend Tribune

This article was produced in partnership with the South Bend Tribune, a member of ProPublica’s Local Reporting Network in 2018. ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

 

The police gave Ricky Joyner a pen and a nine-page questionnaire.

Write what you did, beginning to end, on the day Sandra Hernandez disappeared, one question asked.

“Went ot work …,” Joyner wrote, transposing the letters in “to.” “Went home toke shower got dress pick Sandra up … went out to eat … went the movies … toke Sandra home … stop at [bar] for little while, then spent the night with a grilfriend.”

“Did you cause Sandra to become missing?” another question asked.

“No,” Joyner wrote.

“How do you feel now that you have completed this form?”

“Yes,” Joyner wrote, that one word the entirety ...

From the Editor

by Richard Resch

As regular readers of Criminal Legal News (“CLN”) will notice, we’ve increased the page count from 48 to 56 pages beginning with this issue.  There’s no change in subscription prices, only the number of pages per issue.  This is a permanent change that ...

California Supreme Court Holds Confidential Personnel Information of Officers on Internal ‘Brady List’ Can Be Disclosed to Prosecutors

by Dale Chappell

The Supreme Court of California held on August 26, 2019, that a so-called “Brady List” maintained by a law enforcement agency about officers who would have credibility problems if called to the stand at trial may be turned over to prosecutors when an officer on that ...

Oregon Parole Board Must Explain Reason for Extended Parole Postponement Period

by Mark Wilson

The Court of Appeals of Oregon reversed and remanded the Parole Board’s order deferring prisoner’s parole release date for eight years, ruling that “ORS 144.280(3) requires the [parole] board to issue a final order that contains findings of fact and conclusions of law when it decides to ...

Nullify Government Tyranny: In 2020, Harness the Power of Your Discontent

by John W. Whitehead, The Rutherford Institute – Commentary

“The people have the power, all we have to do is awaken that power in the people. The people are unaware. They’re not educated to realize that they have power. The system is so geared that everyone believes the government will ...

First Circuit: Application of Subsequent Guidelines Manual to a Prior, Ungrouped Offense Violates Ex Post Facto Clause

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit held that a district court violated the Ex Post Facto Clause when it applied the 2016 Guidelines Sentencing Manual to an ungrouped offense committed in 2001. This case of first impression in the First Circuit “concerns the interaction ...

California Supreme Court Overturns Its Warrantless Identification Search Precedent

by Dale Chappell

The Supreme Court of California overturned its previous ruling that had allowed police to search a person’s vehicle for identification as an exception to the warrant requirement under the Fourth Amendment.

The case came before the Court after Maria Lopez was stopped in front of her home ...

Federal District Court Grants § 2255 Motion, Finds IAC for Failure to Object to Government’s ‘Misstatement of Law’ During Trial

by Dale Chappell

The U.S. District Court for the District of Kansas granted a motion to vacate a conviction under 28 U.S.C. § 2255 on October 22, 2019, finding that, in addition to a host of other errors by counsel, the failure to object to the Government’s “misstatement of law” ...

Indiana Supreme Court Announces Analytical Framework When Determining Whether Punitive In Rem Forfeiture Violates Excessive Fines Clause

by Douglas Ankney

The Supreme Court of Indiana announced the analytical framework for courts to use when determining whether a punitive in rem forfeiture violates the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution. [Note: An action in rem is brought against “a thing or property” as ...

Hundreds of Cop Shootings Yearly in Arizona

by Ed Lyon

Arizona is known for the antics of former Maricopa County Sheriff Joseph Arpaio. A hard-liner on crime, Arpaio was constantly harsh on prisoners, often to an unconstitutional extent. An alarming, statistically backed report compiled by the Arizona Republic newspaper covering 2011 to 2018 shows that state to ...

Ninth Circuit Holds Evidence from Martinez Hearing Can Be Considered in Granting Habeas Relief, Despite Bar Against Evidentiary Hearings on Facts Not Raised Below

by Dale Chappell

The U.S. Court of Appeals for the Ninth Circuit held on November 29, 2019, that evidence obtained by the district court at a hearing on whether state postconviction counsel was ineffective could be used in order to grant habeas corpus relief, despite the ban on evidentiary hearings ...

To Compute, or Not to Compute: Algorithm-Driven AI in the Criminal Justice System

by Ed Lyon

A computer-era dictum states, “To err is human but to really foul things up requires a computer.” There is no place like the criminal injustice system and its growing dependence on AI and algorithms where that folksy axiom runs so true.

Not all algorithm-driven artificial intelligence (“AI”) ...

Washington Supreme Court Announces Rules for Trial Courts When Implicit Racial Bias Alleged in Jury Decision

by Douglas Ankney

The Supreme Court of Washington announced procedural rules for trial courts to follow when a post-verdict motion for new trial alleges implicit racial bias of a juror or jurors.

The day after Tomas Mussie Berhe was convicted of murder and other crimes, Juror 6 contacted the trial ...

Thousands of Convictions Questioned; Prisoners Released Show Why Law Enforcement Technology Must Be Tested by Third Parties

by Dale Chappell

Denmark recently released dozens of prisoners after more than 10,000 convictions based on evidence derived from faulty software put people in prison for crimes they didn’t commit.

The problem was with the software used by law enforcement, which used cell-site location information (“CSLI”) to establish that a ...

In Case of First Impression, Pennsylvania Supreme Court Holds Compelling Suspect to Disclose Computer Password Is Testimonial in Nature and Violates Fifth Amendment’s Privilege Against Self Incrimination

By Douglas Ankney

In a case of first impression, the Supreme Court of Pennsylvania held that compelling a suspect to disclose the access password to his lawfully seized, but encrypted, personal computer violates the Fifth Amendment’s privilege against self-incrimination.

In 2015, agents from the Office of the Attorney General (“OAG”) ...

New York Criminal Record-Sealing Program Revisited

by Ed Lyon

Criminal Legal News first reported on a 2017 law passed by the New York State Legislature that allows citizens to have certain criminal records sealed in its January 2019 issue (p.38-39).

Former prisoners could have up to two misdemeanors or one nonviolent felony and one misdemeanor conviction ...

Which Makes Us Safer? Residency Restrictions or Enhanced Rehabilitation for Former Sexual Offenders?

by Sandy Rozek, NARSOL

Twenty years ago, at age 23, William committed a serious sexual crime for which he spent three years in prison and participated in an intensive treatment program – four hours a day, five days a week. He confronted the demons of his own childhood molestation and ...

11th Circuit: General Threat of Harm Inherent in Every Bank Robbery Doesn’t Qualify for ‘Threat-of-Death’ Enhancement

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit ruled that the general threat of harm required in every bank robbery under 18 U.S.C. § 2113(a) does not justify the two-level “threat-of-death” enhancement of U.S.S.G. § 2B3.1(b)(2)(F).

In March 2017, an unarmed Roberto Arturo Perez entered a ...

Hundreds of Dishonest Cops Called as Witnesses

by Jayson Hawkins

Little Rock, Arkansas, is a typical American city. When two police officers there pinned down a suspect while a third, David B. Green, beat his face into the ground in 2011, it was not unlike incidents in other towns across the nation. That a bodycam video showed ...

Washington Supreme Court Affirms Warrantless Search of CSLI Data but Holds Convictions for Both First-degree Rape and Felony Murder Predicated on Rape Violate Double Jeopardy

by Douglas Ankney

The Supreme Court of Washington affirmed the warrantless search of Bisir Bilal Muhammad’s real-time cell-site location information (“CSLI”) based on exigent circumstances. However, the Court also held that Muhammad’s convictions for first-degree felony murder predicated on rape and for first-degree rape violated double jeopardy.

In November 2014, ...

Alaska Police Department Run by Former Convicts

by Kevin Bliss

Stebbins, Alaska, maintains a seven-man police force in 2019 led by Police Chief Sebastian Mike. Every member of the force has been convicted of a crime. Convictions range from trespassing to domestic assault, with the chief a registered sex offender for a conviction of sexual abuse on ...

Oregon Supreme Court: Conviction for Interfering with Police Requires Lawful Order

by Mark Wilson

The Supreme Court of Oregon reversed a conviction for interfering with a peace officer, concluding that the officer did not have reasonable suspicion that a crime had been, or was about to be, committed — and his order was not a “lawful order.”

At about midnight, Beaverton, ...

Montana Supreme Court Holds Automatic 35% Drug Fine Facially Unconstitutional

by Dale Chappell

The Supreme Court of Montana held that the state’s automatic and mandatory fine of 35 percent of the market value of the drugs in a drug-offense conviction is facially unconstitutional, because it doesn’t allow a court to consider the nature of the crime, the defendant’s ability to ...

Sixth Circuit: Grant of Habeas on Grounds that State Trial Court Violated Defendant’s Right to Present a Complete Defense

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit affirmed a district court’s conditional grant of a petition for writ of habeas corpus on grounds that the state court violated the petitioner’s right to present a complete defense when it excluded two exculpatory statements.

When Parish Hickman ...

Second Circuit Affirms District Court’s Decision Setting Aside Guilty Verdict in a Case of Irreconcilably Inconsistent Verdicts

by Douglas Ankney

In a case of apparent first impression within the circuit, the U.S. Court of Appeals for the Second Circuit upheld a district court’s decision that set aside a guilty verdict in a case where the jury rendered irreconcilably inconsistent verdicts.

A jury found Janine Plaza Pierce guilty ...

Illinois Supreme Court: Statute Banning All Sex Offenders on Probation From Accessing or Using Social Networking Websites Facially Unconstitutional

by Douglas Ankney

At issue in this case is the constitutionality of 730 ILCS 5/5-6-3(a)(8.9), which imposes as a condition of probation on all sex offenders a complete, blanket ban from accessing or using any social networking website. The Supreme Court of Illinois held that the statute is unconstitutionally overbroad. ...

Idaho Supreme Court: Where Police Were Unaware of Probationer’s Fourth Amendment Waiver Until After Unreasonable Search, Waiver Won’t Make Search Reasonable

by Douglas Ankney

The Supreme Court of Idaho ruled that when police were unaware of a probationer’s Fourth Amendment waiver until after an unreasonable search was conducted, the police cannot rely on the waiver to sanction the otherwise unreasonable search. The Court also explained why the inevitable discovery doctrine does ...

Book Review: The Habeas Citebook: Prosecutorial Misconduct Is an Invaluable Resource for Challenging Prosecutorial Misconduct

by Dale Chappell

I have to admit that the idea of a citebook in the age of searchable databases was a little lost on me. “Who needs a citebook these days,” I would say. But then Richard, managing editor at CLN, asked me to take a look at a new ...

Fifth Circuit Holds Davis Retroactive, Conspiracy Cannot Support 924(c) Convictions

by Dale Chappell

The U.S. Court of Appeals for the Fifth Circuit held that the U.S. Supreme Court’s recent decision in United States v. Davis, 139 S. Ct. 2319 (2019), declaring another residual clause unconstitutional is retroactive and further held that a conspiracy to commit a crime could not support ...

Colorado Supreme Court Reverses Conviction Because Trial Court Failed to Give No-Adverse-Inference Jury Instruction for Choosing Not to Testify

by Douglas Ankney

he Supreme Court of Colorado reversed the conviction of Julian Anastacio Deleon because the trial court failed to give a no-adverse-inference instruction to the jury to explain to them that they could not hold his decision not to testify against him.

Deleon was charged with two counts ...

Georgia Supreme Court Clarifies What a Defendant Must ‘Admit’ Before Raising an Affirmative Defense

by Douglas Ankney

The Supreme Court of Georgia clarified that a criminal defendant need not “admit” anything — in the sense of acknowledging that any facts alleged in the charges against him are true — in order to raise an affirmative defense.

Carlos Richard McClure was found guilty of violating ...

New York Court of Appeals: Police Officers May be Cross-Examined About Acts of Dishonesty Like Any Other Witness

by Douglas Ankney

The Court of Appeals of New York ruled that police officers may be questioned about prior acts of dishonesty, subject to the trial court’s discretion, just like any other witness.

In August 2013, a person fired a single gunshot at a group of teenagers on a street ...

Fourth Circuit Clarifies How to Bring a First Step Act Motion Applying the Fair Sentencing Act

by Dale Chappell

The U.S. Court of Appeals for the Fourth Circuit held on November 20, 2019, that a less familiar provision of 18 U.S.C. § 3582 is the proper vehicle for bringing a motion for relief under the First Step Act, rejecting the district court’s conclusion that First Step ...

3d Circuit: Counsel’s Failure to Investigate Drug Properties for Analogous Drug Comparison at Sentencing Constitutes Ineffective Assistance

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit ruled that an attorney’s failure to investigate the properties of methylone after the pre-sentence report (“PSR”) stated the drug was analogous to methylenedioxy-methamphetamine (“MDMA” or “ecstasy”) constituted ineffective assistance of counsel.

While Peter Sepling was on bond awaiting ...

South Carolina Supreme Court Grants New Trial Due to Prosecutor’s Prejudicial Closing Remarks

by Douglas Ankney

The Supreme Court of South Carolina granted a new trial to Oscar Fortune after the Court determined Fortune’s due process rights were violated by prejudicial remarks from the prosecutor during closing argument.

At Fortune’s murder trial, evidence was presented that both Fortune and victim Anthony Shields possessed ...

First Circuit Vacates Conviction Because Sister had Neither Actual nor Apparent Authority to Consent to Search of Brother’s Bags

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit vacated the conviction of Bryan Moran because his sister, Alysha, had neither actual nor apparent authority to consent to a search of several closed, opaque, black plastic garbage bags he had placed in Alysha’s storage unit. Bryan had ...

In Case of First Impression, Fourth Circuit Holds First Step Act Applies to Those Serving Supervised Release Revocation Sentences

by Dale Chappell

The U.S. Court of Appeals for the Fourth Circuit held on November 20, 2019, that the retroactive application of the Fair Sentencing Act of 2010 (“FSA”) by the First Step Act applies to those who are serving a sentence after a revocation of supervised release linked to ...

Court Rulings Condemning Cash Bail Systems Increasing

by Ed Lyon

A historically overlooked, or at least minimized, constitutional guarantee is that excessive bail amounts must not be imposed upon citizens accused of crimes. Cash bails routinely far exceed not only most people’s ability to pay but are usually far in excess of the severity of the crime ...

Sheriff Ackal’s Corruption Continues to Plague Louisiana Parish

by Douglas Ankney

More than 100 criminal cases in Louisiana’s Iberia Parish have been thrown out due to a federal investigation into Sheriff Louis Ackal’s reign.

And now hundreds more may also get the boot. First Assistant District Attorney Robert Vines sent “Brady letters” (named after Brady v. Maryland ...

Eighth Circuit: Defendant Who Pleaded Guilty to State Felonies Didn’t Know He Couldn’t Possess Firearms Prior to Sentencing Because He Didn’t Know He Had Been Convicted

by Anthony Accurso

The U.S. Court of Appeals for the Eighth Circuit held that a defendant didn’t “know” he had been convicted of a felony under Iowa law after entering a guilty plea but before his sentencing to a deferred judgment and thus vacated his federal conviction for being a ...

Freedom or Restitution for the Wrongfully Convicted

by Jayson Hawkins

"I’m sitting here a semblance, trying to get back to me,” Jimmy Dennis admitted from the relative safety of his living room, afraid to venture beyond his doorstep.

Dennis exhibited the symptoms of post-traumatic stress disorder, including menacing nightmares and acute paranoia, which are often associated with ...

Oklahoma: Cocaine Bust Was Really Only Powdered Milk

by Ed Lyon

Cody Gregg of Oklahoma is a member of a growing segment of America’s population—he is a homeless person and also receives food from a community pantry. On August 12, 2019, Gregg was doing a probated sentence for a drug conviction. He had been to a food pantry ...

News in Brief

California: Former San Diego sheriff’s deputy Richard Fischer, accused of sexual misconduct with at least 16 women between 2015 and 2017, will be eligible for jail release in under two years based on a plea deal, thefreethoughtproject.com reports. Fischer, who pleaded guilty to four felonies and three misdemeanors, allegedly ...

 

 

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