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A Night To Remember

Criminal Legal News: March, 2020

Issue PDF
Volume 3, Number 3

In this issue:

  1. Prosecutorial Misconduct: Justice Denied as the System Turns a Blind Eye (p 1)
  2. Hawai’i Supreme Court Announces Degree of ‘Restraint’ Necessary to Support Kidnapping Conviction (p 17)
  3. Attacking the Guilty Plea: The ‘Voluntarily and Knowingly Made’ Standard (p 18)
  4. Colorado Supreme Court Clarifies and Modifies Analytical Framework for Proportionality Reviews (p 20)
  5. Nevada Supreme Court: Parole Board May Petition To Modify Life Sentence (p 21)
  6. California Court of Appeal: Electronics Searching Condition Struck in Mandatory Supervision Case (p 22)
  7. Alaska Supreme Court: Forcing a Defendant to Testify Is Structural Error Requiring Automatic Reversal (p 22)
  8. First Step Act Earned-Time Credits are Coming ... Eventually and Only to Some Prisoners (p 23)
  9. Massachusetts Supreme Judicial Court: When Exit Order is Unlawful, Evidence Obtained from Subsequent Search Must be Suppressed (p 24)
  10. Hawai’i Supreme Court Rules Search Warrant Failed to Satisfy the Particularity Requirement for Multiple-Occupancy Dwellings (p 24)
  11. Ninth Circuit Vacates Unconstitutionally Vague Supervised-Release Conditions (p 26)
  12. Fourth Circuit: Magistrate’s Failure to Warn of ACCA Enhancement Was Plain Error (p 26)
  13. Eleventh Circuit: Selling Body Armor Doesn’t Satisfy Sentencing Guidelines’ Definition of ‘Use’ (p 28)
  14. Hawai’i Supreme Court: Time Spent in Arizona Prison Counts Toward Speedy Trial Rule in Hawai’i (p 28)
  15. Nation’s First-Ever Nonprofit Forensics Laboratory Coming to Utah (p 29)
  16. New York Court of Appeals Reverses Conviction Where Trial Court Negotiated Cooperation Agreement with Codefendant (p 30)
  17. Eleventh Circuit Holds Georgia’s Terroristic Threats Statute Not Violent Felony for ACCA (p 30)
  18. Ohio Supreme Court Announces State Cannot Raise Fourth Amendment Standing Issue for First Time on Appeal (p 31)
  19. Nevada Supreme Court Announces Rule for When Hearing Required on Fair-Cross-Section of Community Violation Claim in Jury Selection (p 32)
  20. California Court of Appeal Invalidates Title 15 § 3490(a)(5) of the California Code of Regulations (p 32)
  21. Georgia Supreme Court Reverses Conviction for Failure to Give Accomplice-Corroboration Jury Instruction (p 33)
  22. Ninth Circuit Affirms Habeas Relief Where Counsel Failed to Present Mitigating Evidence at Penalty Phase (p 34)
  23. The ‘First Step’ Has Been Taken — What’s Next? (p 35)
  24. Lies by Former Houston Cop Facing Murder Charge Might Affect Over 14,000 Cases (p 36)
  25. Second Circuit Holds Appointment of Counsel for Direct Appeal Not Subject to Frivolousness Rule (p 36)
  26. Mississippi Supreme Court Abolishes ‘Pre-Arming’ Jury Instruction (p 37)
  27. Vermont Supreme Court Rejects ‘Blanket Rule’ Requiring Fingerprinting in Misdemeanor Cases (p 38)
  28. Texas Court of Criminal Appeals Announces New Test in Comparing Out-of-State Priors for Sentence Enhancement for Repeat Sex Offenders (p 38)
  29. Washington Supreme Court Remands for Resentencing Where State Failed to Prove Criminal History (p 39)
  30. Washington Supreme Court Affirms Reversals of Murder Convictions, Overrules Townsend (p 39)
  31. Sixth Circuit Vacates Sentence Because District Court Relied on Uncharged Shooting Allegation for Upward Departure from Sentencing Guidelines Range (p 40)
  32. Federal Prosecutor’s Office in Kansas Considers It Acceptable to Listen to Attorney-Client Conversations (p 41)
  33. Employers are Adjusting to Hiring Ex-Offenders (p 42)
  34. New Tennessee Legislation Will Destroy Hundreds, Probably Thousands, of Families (p 42)
  35. Prosecutors Transform Due Process into ‘Dues Processed’ (p 43)
  36. Study Confirms Immigrants Sentenced More Harshly in Non-Immigrant Areas (p 43)
  37. Critics Claim Thin Blue Line Protects Cops and Prosecutors in Orange County, California (p 44)
  38. Tenth Annual NRC Report Magnifies Limits of Forensic Evidence (p 44)
  39. DA’s Office Files Bar Complaint on Its Own Former Prosecutor (p 45)
  40. White Cop Gets 10 Years for Murder; Black Kid Gets 10 Days for Oversleeping (p 45)
  41. DNA Contamination Threatened Conviction of Innocent Man (p 46)
  42. Police Still Have Access to Records That Are Supposedly Sealed, Suit Alleges (p 46)
  43. Alabama Sheriff Denied Immunity for False Charges Against Whistleblower (p 47)
  44. For the Mentally Ill, Calling 911 Could Prove Deadly (p 47)
  45. More Crooked Cops in New York City Make the Naughty List (p 48)
  46. Court Rulings Condemning Cash Bail Systems Increasing (p 48)
  47. Kim Kardashian Keeps Going, Helps Release D.C. Prisoner (p 49)
  48. Unsurprisingly Lenient Sentence for Rapist Cop (p 49)
  49. Federal Rules Limit Searches of Private DNA Databases (p 50)
  50. News in Brief (p 50)

Prosecutorial Misconduct: Justice Denied as the System Turns a Blind Eye

by Christopher Zoukis

How do rogue forensic scientists and other bad cops thrive in our criminal justice system? The simple answer is that some prosecutors turn a blind eye to such misconduct because they’re more interested in gaining a conviction than achieving a just result. — Judge Alex Kozinski, U.S. ...

Hawai’i Supreme Court Announces Degree of ‘Restraint’ Necessary to Support Kidnapping Conviction

by Douglas Ankney

The Supreme Court of Hawai’i held that the restraint necessary to support a kidnapping conviction under Hawai’i Revised Statutes (“HRS”) § 707-720(1)(d) must be restraint that is “in excess of any restraint incidental to the infliction or intended infliction of bodily injury or subjection or intended subjection ...

Attacking the Guilty Plea: The ‘Voluntarily and Knowingly Made’ Standard

by Dale Chappell

Attacking the guilty plea is probably one of the least understood concepts in the postconviction world, even though more than 95 percent of state and federal convictions are the direct result of a guilty plea. In 2018 alone, there were 73,109 federal convictions with 71,550 of them ...

Colorado Supreme Court Clarifies and Modifies Analytical Framework for Proportionality Reviews

by Douglas Ankney

On December 16, 2019, the Supreme Court of Colorado clarified and modified the analytical framework courts are to follow when conducting proportionality reviews of sentences in general and habitual offender sentences in particular.

Belinda May Wells-Yates was found guilty of second-degree burglary, theft, possession with intent to ...

Nevada Supreme Court: Parole Board May Petition To Modify Life Sentence

by Anthony Accurso

The Supreme Court of Nevada held that the Nevada Board of Parole Commissioners had the authority to petition a district court to modify a defendant’s sentence and remove him from lifetime parole.

Marlin Thompson was convicted of murder and attempted murder in 1978 for which he received ...

California Court of Appeal: Electronics Searching Condition Struck in Mandatory Supervision Case

by Anthony Accurso

The Court of Appeal of California, Second Appellate District, held that a condition imposed during a mandatory supervision period that required the defendant to submit to searches of any electronic device in his possession was overly broad and unrelated to preventing future criminality.

Clydell Bryant was charged ...

Alaska Supreme Court: Forcing a Defendant to Testify Is Structural Error Requiring Automatic Reversal

by Douglas Ankney

In a case of first impression, the Supreme Court of Alaska announced that when a trial court forces a defendant to testify at his or her trial, it is a structural error not subject to harmless error analysis but always requires reversal.

Paino Manuel Alvarez-Perdomo was tried ...

First Step Act Earned-Time Credits are Coming ... Eventually and Only to Some Prisoners

by Dale Chappell

Even though we’ve passed the one-year anniversary of the First Step Act over a month ago, the portion of the bill giving federal prisoners more earned-time credits for completing certain programs is still on the distant horizon and, when it finally does begin, many prisoners will not ...

Massachusetts Supreme Judicial Court: When Exit Order is Unlawful, Evidence Obtained from Subsequent Search Must be Suppressed

by Douglas Ankney

The Supreme Judicial Court of Massachusetts ruled that when officers unlawfully issue an order commanding a suspect to exit a vehicle, any evidence obtained from the subsequent search should be suppressed.

Boston police received information from an unidentified informant that a green Volvo station wagon containing a ...

Hawai’i Supreme Court Rules Search Warrant Failed to Satisfy the Particularity Requirement for Multiple-Occupancy Dwellings

by Douglas Ankney

The Supreme Court of Hawai’i agreed with a circuit court’s finding that a search warrant failed to satisfy the particularity requirement of article I, § 7 of the Hawai’i Constitution and vacated the judgment of the Intermediate Court of Appeals (“ICA”) that had reversed the decision of ...

Ninth Circuit Vacates Unconstitutionally Vague Supervised-Release Conditions

by David M. Reutter

The U.S. Court of Appeals for the Ninth Circuit held the search of a home listed as the residence of a parolee was legal despite the fact the parolee no longer lived at the residence. The Court further found the conditions of supervised release imposed on ...

Fourth Circuit: Magistrate’s Failure to Warn of ACCA Enhancement Was Plain Error

by Douglas Ankney

On rehearing en banc, the U.S. Court of Appeals for the Fourth Circuit vacated the conviction of Jesmene Lockhart because the magistrate judge’s failure to warn Lockhart that his guilty plea exposed him to sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), ...

Eleventh Circuit: Selling Body Armor Doesn’t Satisfy Sentencing Guidelines’ Definition of ‘Use’

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit held that selling body armor doesn’t meet the definition for “the use of body armor” as defined in § 3B1.5 of the Sentencing Guidelines.

Ronald John Bankston III pleaded guilty to two counts of unlawful possession and one ...

Hawai’i Supreme Court: Time Spent in Arizona Prison Counts Toward Speedy Trial Rule in Hawai’i

by Anthony Accurso

The Supreme Court of Hawai’i held that a defendant’s time spent in the custody of the State, though he was in a mainland prison in Arizona, did not make him “unavailable” for trial.

Charly Hernane was charged with the second-degree murder of his mother, Teresita Dumalan Hernane, ...

Nation’s First-Ever Nonprofit Forensics Laboratory Coming to Utah

by Douglas Ankney

The Utah Cold Case Coalition (“Coalition”) announced in November 2019 that it is building Intermountain Forensics — the first nonprofit forensics lab in the United States. The Coalition is headed by Salt Lake attorney Karra Porter and was formed in 2017 to spotlight the 1995 unsolved case ...

New York Court of Appeals Reverses Conviction Where Trial Court Negotiated Cooperation Agreement with Codefendant

by Anthony Accurso

The Court of Appeals of New York reversed a defendant’s conviction for robbery because the trial court entered into a plea agreement with a codefendant that required the codefendant to testify against the defendant in exchange for sentencing leniency.

Agade Towns was convicted of six counts of ...

Eleventh Circuit Holds Georgia’s Terroristic Threats Statute Not Violent Felony for ACCA

by Dale Chappell

The U.S. Court of Appeals for the Eleventh Circuit held that a Georgia prior conviction for making terroristic threats is not a violent felony under the Armed Career Criminal Act (“ACCA”), clarifying its prior cases that had seemingly held that it was.

The case was a direct ...

Ohio Supreme Court Announces State Cannot Raise Fourth Amendment Standing Issue for First Time on Appeal

by Douglas Ankney

The Supreme Court of Ohio held that the State must raise in the trial court a claim that a defendant lacks standing to contest the admission of seized evidence. If the State fails to raise the claim in the trial court, the State is foreclosed on appeal ...

Nevada Supreme Court Announces Rule for When Hearing Required on Fair-Cross-Section of Community Violation Claim in Jury Selection

by Dale Chappell

The Supreme Court of Nevada held on December 19, 2019, that when a defendant makes specific allegations that, if true, would establish a “prima facie” showing of a violation of racial balance in jury selection an evidentiary hearing is required.

After Keandre Valentine was convicted by a ...

California Court of Appeal Invalidates Title 15 § 3490(a)(5) of the California Code of Regulations

by Douglas Ankney

Division Five of the Second Appellate District of the California Court of Appeal granted Mohammad Mohammad’s petition for writ of habeas corpus and ordered the California Department of Corrections and Rehabilitation (“CDCR”) to treat as void and repeal the California Code of Regulations (“Cal. Code Regs.”), title ...

Georgia Supreme Court Reverses Conviction for Failure to Give Accomplice-Corroboration Jury Instruction

by Douglas Ankney

The Supreme Court of Georgia reversed the convictions of Matthew Doyle because the trial court failed to charge the jury on the requirement for corroboration of accomplice testimony.

At Doyle’s murder trial, Keith Richardson testified that he picked up Lewis Parks and Doyle in his blue Ford ...

Ninth Circuit Affirms Habeas Relief Where Counsel Failed to Present Mitigating Evidence at Penalty Phase

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s judgment granting habeas relief to Jesse James Andrews because his attorneys failed to present extensive and compelling mitigating evidence at the penalty phase after a jury found him guilty of capital crimes.

A jury ...

The ‘First Step’ Has Been Taken — What’s Next?

by Dale Chappell

Thousands of federal prisoners were sent home early. Scores of unfair drug sentences were reduced. Barbaric criminal laws were finally fixed. Federal prisoners were offered more drug treatment and release preparation.

These are some of the things achieved by the First Step Act passed a year ago ...

Lies by Former Houston Cop Facing Murder Charge Might Affect Over 14,000 Cases

by David M. Reutter

A Texas judge, Ramona Franklin, declared Otis Mallet “actually innocent” of selling crack cocaine to a Houston police officer, saying “What a miscarriage of justice we have all witnessed with your case, Mr. Mallet.”

That finding may be the tip of the iceberg as former Houston ...

Second Circuit Holds Appointment of Counsel for Direct Appeal Not Subject to Frivolousness Rule

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit held in forma pauperis (“IFP”) “motions on direct criminal appeals are not subject to a merits determination under [28 U.S.C.] Section 1915.” The Court explained that this rule “ensures that all financially eligible defendants—whether granted CJA [Criminal Justice ...

Mississippi Supreme Court Abolishes ‘Pre-Arming’ Jury Instruction

by Dale Chappell

The Supreme Court of Mississippi held on January 9, 2020, that a pre-arming jury instruction was wrongfully given in a shooting death case and further held that no court in the state may ever again issue a pre-arming instruction to a jury preventing a self-defense with a ...

Vermont Supreme Court Rejects ‘Blanket Rule’ Requiring Fingerprinting in Misdemeanor Cases

by Dale Chappell

The Supreme Court of Vermont rejected a trial court’s order that a misdemeanor defendant had to be fingerprinted merely because the State participates in a national crime database. The Court said such a rule created an impermissible “blanket rule” that the law does not require.

Timothy Grant ...

Texas Court of Criminal Appeals Announces New Test in Comparing Out-of-State Priors for Sentence Enhancement for Repeat Sex Offenders

by Michael Berk

The Texas Court of Criminal Appeals announced a new test for determining whether a prior out-of-state conviction is “substantially similar” to enumerated Texas offenses for application of enhanced penalties for repeat sex offenses, explicitly overruling two precedential decisions.

The State sought to enhance Walter Fisk’s sentence under ...

Washington Supreme Court Remands for Resentencing Where State Failed to Prove Criminal History

by Douglas Ankney

In an enbanc decision, the Supreme Court of Washington reversed and remanded for resentencing where the State failed to prove a defendant’s criminal history beyond a reasonable doubt.

A jury convicted Brandon Cate of burglary, theft, and malicious mischief in Okanogan County Superior Court. Cate testified that ...

Washington Supreme Court Affirms Reversals of Murder Convictions, Overrules Townsend

by Douglas Ankney

In these consolidated cases, the Supreme Court of Washington overruled State v. Townsend, 15 P.3d 145 (Wash. 2001), and affirmed, albeit on different grounds, the decision of the Court of Appeals reversing the felony-murder convictions of Michael Bienhoff and Karl Pierce.

Before Washington legalized the cultivation and ...

Sixth Circuit Vacates Sentence Because District Court Relied on Uncharged Shooting Allegation for Upward Departure from Sentencing Guidelines Range

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit vacated the sentence of Andre D. Hatcher, Jr. because the district court relied on an uncharged shooting allegation as a reason for imposing a sentence that was an upward departure from the Sentencing Guidelines range.

In March 2017, ...

Federal Prosecutor’s Office in Kansas Considers It Acceptable to Listen to Attorney-Client Conversations

by Kevin Bliss

United States District Court Judge Julie Robinson released a 188-page opinion August 13, 2019, holding the Kansas branch of the U.S. Attorney’s Office (“USAO”) in contempt for deliberate obfuscation and misrepresentation during a three-year investigation of prosecutorial misconduct by their office for the illicit use of client-attorney ...

Employers are Adjusting to Hiring Ex-Offenders

by Anthony Accurso

A recent look at how Indianapolis companies are adjusting to hiring ex-offenders highlights opportunities and challenges for the newly released around the country.

Nationally, the prison population has decreased 1.3 percent from 2017 to 2018, but in some states, prison populations are on the rise. Indiana saw ...

New Tennessee Legislation Will Destroy Hundreds, Probably Thousands, of Families

by Sandy Rozek, NARSOL

In some of our border states, children sit in detention camps, taken from their parents and held for a reason deemed good by some in our society.

Half the country away in the state of Tennessee, parents will be taken from their children against their will, ...

Prosecutors Transform Due Process into ‘Dues Processed’

by Douglas Ankney

Criminal justice reform advocates often espouse pretrial diversion programs. These programs permit accused citizens to pay a fee and take a class or two in exchange for dismissal of the charges and a clean record.

The prosecutor doesn’t have to spend time or resources prosecuting the charges, ...

Study Confirms Immigrants Sentenced More Harshly in Non-Immigrant Areas

by Dale Chappell

A recent Penn State University study confirmed that negative perceptions of immigration and immigrants have affected sentencing in geographic areas not traditionally known for being destinations for immigrants.

Prior to the 1990s, Hispanics traditionally immigrated to areas like California, Florida, and Texas. But since then, they have ...

Critics Claim Thin Blue Line Protects Cops and Prosecutors in Orange County, California

by Bill Barton

At about 6 a.m., August 19, 2018, Orange County police officer Michael Devitt yanked Mohamed Sayem from his Jeep and punched him several times in the face and stomach, an incident captured on Devitt’s dashboard camera.

Devitt and fellow officer Eric Ota had awakened the apparently intoxicated ...

Tenth Annual NRC Report Magnifies Limits of Forensic Evidence

by Bill Barton

Steven Mark Chaney was convicted of a 1987 murder based partially on the testimony of forensic scientists, which linked him to the crime by a bite mark found on the victim’s skin. The court heard that Chaney’s teeth were a “perfect match,” and that there was a ...

DA’s Office Files Bar Complaint on Its Own Former Prosecutor

by Anthony Accurso

The Santa Fe, New Mexico, District Attorney’s Office submitted a formal complaint to the state’s Bar Association alleging that former prosecutor Jason Lidyard (who is now a district court judge) intentionally withheld exculpatory evidence in a murder case.

Lidyard was assigned to the case against Caleb Calandro, ...

White Cop Gets 10 Years for Murder; Black Kid Gets 10 Days for Oversleeping

by Douglas Ankney

Former white police officer Amber Guyger murdered her black neighbor and was sentenced to 10 years in prison. In contrast, 21-year-old Deandre Somerville, a black college student from Palm Beach County, Florida, committed the offense of oversleeping and arriving late for jury duty.

Somerville — who has ...

DNA Contamination Threatened Conviction of Innocent Man

by Kevin Bliss

The NYC Medical Examiner’s office (“ME”) reviewed the DNA analysis procedure in a burglary case that was the only evidence used to charge Darrell Harris with the crime. They found that the DNA sample could have been contaminated, but only after Harris lost his job and $25,000 ...

Police Still Have Access to Records That Are Supposedly Sealed, Suit Alleges

by Bill Barton

According to a recent Collateral Consequences Resource Center report, “While police in 12 states are prevented by law from accessing records of arrests that did not result in a conviction, officers in New York and elsewhere can look up such files if they get permission from a ...

Alabama Sheriff Denied Immunity for False Charges Against Whistleblower

by Anthony Accurso

An Alabama sheriff was denied immunity for acts taken to extort and silence a whistleblower who exposed her corruption.

In Alabama, sheriffs are allowed to receive as personal income any excess funds “left over” after feeding (or rather, starving) jail inmates. Former Sheriff Greg Bartlett was nicknamed ...

For the Mentally Ill, Calling 911 Could Prove Deadly

by Ed Lyon

Police responding to 911 calls that involve individuals in a mental health crisis might resort to deadly force rather than exercise restraint and give support, according to a trend identified by The Intercept’s Shaun King. And, in areas such as New York City, the vast majority of ...

More Crooked Cops in New York City Make the Naughty List

by Douglas Ankney

In October of 2019, the Bronx District Attorney released a heavily redacted list of 75 cops whose testimony the District Attorney’s office feared would undermine cases. Because many of those cops were proven to be liars, the prosecutors won’t call them as witnesses.

Prior to the release ...

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 ...

Kim Kardashian Keeps Going, Helps Release D.C. Prisoner

by Dale Chappell

If Kim Kardashian’s efforts to help people get released from prison were just a stunt, as some said, then she’s become a full-time stuntwoman in her own right. This past October, Kardashian helped yet another prisoner – a man who had been locked up nearly 23 years ...

Unsurprisingly Lenient Sentence for Rapist Cop

by Anthony Accurso

A now-former Louisville, Kentucky, Metro Police officer was sentenced to just five years for five rapes and possession of child pornography. The rapes were reduced to misdemeanors, while the latter was a felony conviction.

The first victim came forward against Louisville Metro PD officer Pablo Cano in ...

Federal Rules Limit Searches of Private DNA Databases

by Jayson Hawkins

A new policy instituted by the U.S. Department of Justice (“DOJ”), effective November 1, 2019, is the first federal rule governing the use of family-tree DNA databases by law enforcement.

Services that allow individuals to trace their ancestry through DNA technology have grown increasingly popular in recent ...

News in Brief

Alabama: Limestone County District Judge Douglas Patterson, 37, was arrested in December 2019 after an investigation by the FBI and its law enforcement partners. Patterson, a judge since 2016, was charged in a three-count grand jury indictment for theft, financial exploitation of the elderly and use of office for ...

 

 

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