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Criminal Legal News: April, 2020

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Volume 3, Number 4

In this issue:

  1. The Rise of Smart Camera Networks, and Why We Should Ban Them (p 1)
  2. Iowa Supreme Court: Officer’s Delay of Traffic Stop to Investigate Other Matters Unconstitutional (p 6)
  3. Spirited (But Problematic?) Advocacy for Bernie Madoff to Receive Compassionate Relief (p 8)
  4. Connecticut Supreme Court Clarifies Standard of Review for Confrontation Clause Claims; Reverses and Remands for a New Trial (p 10)
  5. Sixth Circuit Adopts ‘Naked Eye Test’ for Altered Firearm Serial Number Enhancement (p 11)
  6. Seventh Circuit Vacates Guilty Pleas Based on Misinformation of Mandatory Minimum (p 12)
  7. More Trainings Are Not the Answer to Police Violence Against Disabled People (p 12)
  8. Utah District Court Finds First Step Act Gives Court Authority to Reduce Stacked 55-Year § 924(c) Sentence (p 14)
  9. Maine Supreme Court Declares Blood Draw Statute Unconstitutional, Overruling Cormier (p 16)
  10. Kansas Supreme Court: State Failed to Prove Building Was a Dwelling (p 17)
  11. Law Review Article Zeros in on Roadblocks to Plea Bargain Fairness and Effectiveness (p 18)
  12. New York’s SARA Requirements Force Sex-Offenders into Homelessness Then Hold Them in Prison Due to Their Homelessness (p 20)
  13. Expert’s Burn-Pattern Conclusions Flawed (p 22)
  14. Life Sentence for Murder Overturned by New DNA Technology (p 24)
  15. Seventh Circuit Holds Brain Injury May Allow Equitable Tolling to File Late Habeas Petition (p 25)
  16. Michigan Supreme Court: Defendant Entitled to Self-defense Jury Instruction (p 26)
  17. Ninth Circuit Orders Habeas Relief After California Concedes Conviction Should Be Overturned Due to Defense Counsel’s ‘Virulent Racism’ (p 26)
  18. Georgia Supreme Court Overrules 50 Years of Jurisprudence and Announces Courts Are to Consider Cumulative Prejudice of Trial Court and Counsel Errors (p 28)
  19. Third Circuit: Confrontation Clause Violated When Jury Is Told ‘Other Guy’ Referenced in Non-Testifying Codefendant’s Statement Is the Defendant (p 29)
  20. Louisiana Supreme Court: When an Identified Attorney Seeks to Assist a Person in Custody and Police Fail to Inform the Person, Inculpatory Statements Must Be Suppressed (p 30)
  21. D.C. Circuit: 18 U.S.C. § 1114 Does Not Apply Overseas But § 924(c) Does (p 30)
  22. Maryland Court of Appeals Announces, When Requested, Trial Courts Must Ask During Voir Dire Whether Jurors Will Follow Court’s Instructions on Presumption of Innocence, Burden of Proof, and Right Not to Testify (p 32)
  23. Sixth Circuit: Ohio’s Stringent Post-Conviction Filing Deadline Opens Window for Federal Review Under Trevino (p 33)
  24. The Faulty Science of Breathalyzers (p 34)
  25. Fact or Fiction, Television Crime Shows Ignore Racism and Reality (p 34)
  26. Third Circuit Holds ‘Bare’ Arrest Record Insufficient to Support Higher Sentence (p 35)
  27. Sex Offender Registries Grounded in False Notions (p 36)
  28. Pennsylvania Supreme Court Holds Retention of Defendant’s ID Card Constitutes ‘Seizure’ for Fourth Amendment Purposes (p 36)
  29. Kansas Supreme Court: Claim of Illegal Sentence Raised for First Time on Appeal Entitled to Merits Review (p 37)
  30. Reform-Minded Prosecutors Use Charging Discretion to Benefit Communities (p 38)
  31. Nevada Supreme Court: Duress Defense May be Used for Non-Death Penalty Charges, Even When Connected to Charges Punishable by Death (p 38)
  32. New Orleans Sheriff’s Office Tracked Cellphones Absent Warrants (p 39)
  33. Sex Offenders Go to W.A.R. (p 40)
  34. California Court of Appeal: Hunch That Proves Correct Is Not Reasonable Suspicion for Traffic Stop (p 40)
  35. Massachusetts Supreme Judicial Court: Police Must Inform Arrested Driver That Passenger Can Assume Custody of Vehicle if Lawful and Practical as Alternative to Impoundment (p 41)
  36. Ohio Supreme Court: Ineffective Assistance of Counsel Analysis Applies to Failure to Seek Waiver of Court Costs (p 42)
  37. California Supreme Court: Positioning Computer Monitor to Obstruct Defendant’s View of Complaining Witness Violates Confrontation Clause (p 42)
  38. New Lie Detectors Are On the Way, But Are They Better Than the Old One? (p 43)
  39. Jury Nullification as a Cure for Prosecutorial Overreach (p 44)
  40. Louisiana Supreme Court: State Abused Charging Authority by Dismissing and Reinstituting Charges to Circumvent Adverse Court Ruling (p 44)
  41. NYC Drug Prosecutor Bucks Trend of Releasing List of Cops with Credibility Issues (p 45)
  42. Racial Disparity at Sentencing on the Rise (p 45)
  43. Colorado Supreme Court Announces Implied Bias the Same as Actual Juror Bias, Requiring Automatic Reversal (p 46)
  44. Rhode Island Supreme Court Reverses Conviction Due to Prosecutor’s Remarks and Jury Consideration of Inadmissible Evidence (p 46)
  45. Warrant Gives Police Access to DNA Database (p 47)
  46. New York to Seal Convictions for Small Amounts of Marijuana (p 48)
  47. Nevada Supreme Court: 26-Month Delay Between Charges and Arrest Constitutes Speedy Trial Violation (p 48)
  48. New Jersey Tightens Reins on Civil Asset Forfeiture (p 49)
  49. U.S. District Judge Blows Open ATF Fake Stash-House Stings, Wants to Know Why They Only Target Minorities (p 49)
  50. Cops Killed Nearly 13 Times More People Than Mass Shooters (p 50)
  51. News in Brief (p 50)

The Rise of Smart Camera Networks, and Why We Should Ban Them

by , The Intercept

This January 27, 2020 article is republished with permission from The Intercept, an award-winning nonprofit news organization dedicated to holding the powerful accountable through fearless, adversarial journalism. Sign up for The Intercept’s Newsletter.

There’s widespread concern that video cameras will use facial recognition software to track our every public move. Far less remarked upon — but every bit as alarming — is the exponential expansion of “smart” video surveillance networks.There’s widespread concern that video cameras will use facial recognition software to track our every public move. Far less remarked upon — but every bit as alarming — is the exponential expansion of “smart” video surveillance networks.

Private businesses and homes are starting to plug their cameras into police networks, and rapid advances in artificial intelligence are investing closed-circuit television, or CCTV, networks with the power for total public surveillance. In the not-so-distant future, police forces, stores, and city administrators hope to film your every move — and interpret it using video analytics.

The rise of all-seeing smart camera networks is an alarming development that threatens civil rights and liberties throughout the world. Law enforcement agencies have a long history of using surveillance against ...

Iowa Supreme Court: Officer’s Delay of Traffic Stop to Investigate Other Matters Unconstitutional

by David M. Reutter

The Supreme Court of Iowa reversed a motion court’s denial of a motion to suppress. The Court held a police officer failed to develop a reasonable suspicion of other criminal activity before unreasonably prolonging a traffic stop.

Johnson County Sheriff Office Deputy Cody O’Hare was responding to another call on eastbound Interstate 80 when he came upon a rental car driven by Juan Salcedo. O’Hare was cruising at about 75 mph when he came upon Salcedo, who was in the left most lane at a speed of about 60 mph in a 70 mph zone. Salcedo failed to move to the right, and after about three miles, O’Hare initiated a traffic stop for traveling too slowly in the left-hand lane in violation of Iowa Code § 321.297(2).

Once pulled over, Salcedo handed over his documentation and the rental agreement. He was pat searched and sat in the front of O’Hare’s patrol car as requested. O’Hare inquired about Salcedo’s travel plans, which he provided in detail. Although O’Hare spent virtually the entire time he was talking with Salcedo flipping through the rental agreement, he failed to notice that the person who signed the agreement wasn’t present in ...

Spirited (But Problematic?) Advocacy for Bernie Madoff to Receive Compassionate Relief

by Professor Douglas A. Berman, Sentencing Law and Policy blog (sentencing.typepad.com)

The New York Times has this notable new opinion piece authored by headlined "Let Bernie Madoff, and Many More, Out of Prison: Compassionate release has to apply to unsympathetic prisoners, if we mean what we say about ending mass incarceration."  I think the spirit of this piece is quite sound, but I am not entirely sold on all of its particulars.  Here are excerpts (with a few lines emphasized for comments to follow):

“Recently, Mr. Madoff re-entered the news, as he filed for compassionate release from federal prison. He is entering the final stages of kidney disease and has less than 18 months to live. The Bureau of Prisons denied his petition, as it does to 94 percent of those filed by incarcerated people. But the reforms provided in the First Step Act of 2018 allow him to file an appeal with the sentencing court.

Even some who claim to detest the ravages of mass incarceration argue that Mr. Madoff should be denied compassionate release. He is as close to the financial equivalent of a serial killer as one might encounter. Still, there is a good ...

Connecticut Supreme Court Clarifies Standard of Review for Confrontation Clause Claims; Reverses and Remands for a New Trial

by Douglas Ankney

The Supreme Court of Connecticut clarified the standard of review for claimed violations of the Sixth Amendment’s Confrontation Clause and reversed the judgment of the Appellate Court affirming the convictions of Horvil F. Lebrick.

Lebrick was charged with attempted robbery and felony murder, among other things, for actions that resulted in the shooting death of Shawna Lee Hudson. Lebrick told police he had been present at the apartment of Omar Barrett, located in Hartford, Connecticut, assisting twin brothers Andrew and Andraw Moses “move some boxes” on May 6, 2010, when “a guy showed up shooting.”

Lebrick further told police he did not have a gun and did not know the Moses twins had guns before the shooting began. Lebrick explained to police that he escaped from the apartment by following behind some other men “as they shot their way out of the apartment.” But the State compelled a reluctant Keisha Parks — Andrew Moses’ fiancée — to testify at Lebrick’s probable cause hearing. Parks testified that on May 5, 2010, she observed the Moses brothers enter Lebrick’s van in Brooklyn. The next day she heard that the Moses brothers had been killed.

Lebrick contacted Parks and ...

Sixth Circuit Adopts ‘Naked Eye Test’ for Altered Firearm Serial Number Enhancement

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit adopted a “naked eye test” in holding that a firearm’s serial number is not “altered or obliterated” for a sentencing enhancement if a person must “squint” to view the number, but it’s still readable, overturning a district court’s more liberal interpretation of USSG § 2K2.1(b)(4)(B).

“What, then, does it mean for a serial number to be altered?” That was the question the Court had to answer when Charles Sands appealed the application of a four-level enhancement under the U.S. Sentencing Guidelines (“USSG”) by the district court in finding that the serial number on a firearm he possessed was altered.

Sands was originally charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g) and for possessing a firearm that had a serial number that was “removed, obliterated, or altered, under 18 U.S.C. § 922(k). He agreed to plead guilty to the § 922(g) charge, and the Government agreed to drop the § 922(k) charge. However, that didn’t stop the Government from pursuing an enhancement under the USSG for the supposedly altered serial number, significantly increasing his guideline sentencing range (“GSR”).

The enhancement was applied ...

Seventh Circuit Vacates Guilty Pleas Based on Misinformation of Mandatory Minimum

by David M. Reutter

The U.S. Court of Appeals for the Seventh Circuit vacated the sentences imposed via plea agreements of two defendants due to errors regarding the mandatory minimum sentences they would have faced. The Court held that their prior state convictions were not prior drug convictions under federal law. It affirmed the sentences of three other co-defendants.

Before the Court were appeals of five defendants who faced charges related to their involvement in the Zamudio drug organization, which distributed pounds of methamphetamine and cocaine in the Indianapolis, Indiana, area. Their arrests and indictments came after federal agents executed approximately 40 search warrants. The searches netted over 70 firearms, about 15 pounds of methamphetamine, smaller quantities of cocaine, marijuana, and heroin along with cash. At least 80 people were indicted.

The Seventh Circuit found the district court properly applied the supervisory role enhancement aggravator to Maria Gonzalez. The evidence showed she was a leader who laundered the organization’s money. Her 300-month sentence was affirmed.

Reynold De La Torre challenged on appeal conditions of his supervised release, but the Seventh Circuit found they were waived because he did not object to them in the district court. It also found the ...

More Trainings Are Not the Answer to Police Violence Against Disabled People

by , reprinted from Truthout

The Chicago Police Department (CPD) recently announced it would be hiring an Americans with Disabilities Act (ADA) compliance officer. The ADA compliance officer will be brought on to monitor CPD’s accordance with federally mandated ADA regulations, implement new policies for CPD and provide disability-related training. While the compliance officer may not have “police power,” they would be closely working with law enforcement officers.

The new position is part of a federal consent decree filed by the attorney general’s office and the city of Chicago in September 2018. The drafting of the consent decree, which contains requirements and policy recommendations for police reform, originated from a 2017 investigation into CPD by the Department of Justice. This investigation found excessive use of force against Chicago residents, specifically Black and Latinx people.

While the local disability rights community has largely cheered on CPD’s new position and celebrated it as a victory, others rightfully question whether these new changes will actually benefit community members of color, low-income communities, homeless people, immigrant communities and other groups who are continuously affected by police brutality. Here, we once again find limitations in applying the typical disability rights framework to address ...

Utah District Court Finds First Step Act Gives Court Authority to Reduce Stacked 55-Year § 924(c) Sentence

by Chad Marks

Kepa Maumau was a 20 year old young man when he was arrested and charged with multiple 924(c) offenses. He was eventually sentenced to a total of 55 years in prison. That sentence was driven by the mandatory minimums required under 18 U.S.C. § 924(c).

After the First Step Act became law, Maumau filed a motion for a reduction in sentence pursuant to 18 U.S.C. § 3582. In that motion, he argued that the Court could reduce his sentence if a finding was made that “extraordinary and compelling reasons” exist for such relief.

In considering Maumau’s petition, the Court was tasked with answering three questions: (1) does the Court have discretion to provide relief, (2) should the Court exercise that discretion to modify Maumau’s sentence, and (3) if Maumau is an appropriate candidate, by how much should his sentence be reduced?

The Court first determined that it does have discretion to provide relief. As an initial matter, the Court looked to the text of 18 U.S.C. § 3582 (c)(1)(A)(i). Congress tasked the U.S. Sentencing Commission with defining the phrase “extraordinary and compelling.” The Sentencing Commission’s current policy after passage of the First Step Act still states ...

Maine Supreme Court Declares Blood Draw Statute Unconstitutional, Overruling Cormier

by Douglas Ankney

The Supreme Court of Maine declared 29-A M.R.S. §§ 2522(2) and 2522(3) facially unconstitutional, overruling State v. Cormier, 928 A.2d 753 (Me. 2007).

Randall J. Weddle was pinned inside the cab of his tractor-trailer as the result of an accident that involved five vehicles. It took almost an hour to extricate Weddle from the cab. Two officers with the Knox County Sheriff’s Department believed Weddle may have been responsible for the accident and directed an EMT to take a sample of Weddle’s blood to preserve evidence. Neither officer had probable cause to believe Weddle had been under the influence of drugs or alcohol at the time of the accident.

Both officers relied on 29-A M.R.S. § 2522(2) as authority for the seizure of the blood. Several days after the accident, police found a three-quarters-full bottle of whiskey and a shot glass in the cab.

Weddle was charged with several crimes, including two counts of manslaughter and two counts of causing a death while operating under the influence. He moved to suppress the evidence, including the results of the blood draw. The trial court denied the motion, and a jury convicted Weddle on all counts. ...

Kansas Supreme Court: State Failed to Prove Building Was a Dwelling

by Douglas Ankney

In a case of first impression for the Supreme Court of Kansas, the Court affirmed the decision of the Court of Appeals that had reversed the burglary conviction of Charity Downing because the State failed to prove the building allegedly burgled was a “dwelling” as defined by statute.

At Downing’s trial, the owner, Jeff Keesling, testified that the farmhouse was over 100 years old and that people had lived in the house up until three years ago. When asked if the house was basically intended for use as a residence even though it was unoccupied at the time, Keesling answered, “Yes, I would like somebody to live there but I can’t. It’s too dangerous to rent it to somebody with all my stuff out there.”

The district court’s instructions told the jury that to convict Downing of burglary they had to find that she (1) knowingly entered a dwelling, (2) without authority, and (3) with the intent to commit a theft therein. However, nowhere did the district court define the term dwelling. After the jury convicted Downing, defense counsel moved for a judgment of acquittal - arguing the State did not prove the structure in question was ...

Law Review Article Zeros in on Roadblocks to Plea Bargain Fairness and Effectiveness

by David M. Reutter

More light must be shed on the plea-bargaining process, concludes a law review article published by Texas A&M University School of Law. 

Transparent data is needed to “promote negotiation effectiveness, competence in representation, and procedural justice.”

The article was written by Andrea Kupfer Schneider, law professor and director of the Dispute Resolution Program at the Marquette University School of Law, and Cynthia Alkon, professor of law and director of the Criminal Law, Justice, and Policy Program at the Texas A&M University School of Law.

The 60-page article takes an in-depth look at the secretive plea-bargain process and uses negation theory as a framework to assert that more information can improve this crucial component of the criminal justice system. As the Supreme Court of the United States (“SCOTUS”) has stated, “criminal justice today is for the most part a system of pleas, not a system of trials.”

Over 90 percent of all criminal cases nationwide are resolved through plea bargaining.

The article’s authors “argue that information, or lack thereof, is a significant limitation in ensuring legitimacy of plea bargaining and the entire criminal legal system.” They also assert that more information about the plea bargaining process ...

New York’s SARA Requirements Force Sex-Offenders into Homelessness Then Hold Them in Prison Due to Their Homelessness

by Kevin Bliss

Allison Frankel of the Center for Appellate Litigation wrote an article in the Yale Law Journal discussing New York’s archaic sex-offender housing requirement laws and their inherent problems. She touched on the flawed metrics used to substantiate fear-based reactions to sexual assault, the varied potential violations of both state and federal law these regulations carry, and possible solutions to solve New York’s sex-offender placement problem.

Disabled registered sex-offenders in New York are being held in prison an average of three years past their release date awaiting Sexual Assault Reform Act (“SARA”)-compliant housing, which means the residence cannot be within 1,000 feet of a school. Only four shelters in New York City currently meet that standard. To complicate matters, New York City’s shelters refuse to house anyone not able to independently manage their daily activities or require such things as peritoneal dialysis, an oxygen tank, or catheters they cannot insert themselves despite a 2017 federal ruling that disabled applicants receive “meaningful access to shelter or shelter-related services.”

In addition, more than half the city’s subways are not handicap-accessible with many of the older buildings not fitted for elevators or entry ways wide enough to accommodate a wheelchair. This ...

Expert’s Burn-Pattern Conclusions Flawed

by David M. Reutter

The admission of expert opinion based on science is powerful evidence that is supposed to assist the jury in determining the truth surrounding an event. When a flawed opinion comes into play, the scales of justice become tilted.

Those scales were titled when Dr. Matthew Cox became involved in two child-abuse burn cases in Texas. Cox is part of the growing subspecialty of doctors who assist child-welfare investigations. He completed a pediatric fellowship in Philadelphia and evaluated hundreds of cases of suspected abuse in the years that followed. Then he became the medical director of the Referral and Evaluation of At-Risk Children at Children’s Medical Center in Dallas.

Cox examined a two-year-old with serious burns on her feet up to her ankles. Cox reported the injuries to authorities and later testified, “The pattern of her burn injuries is what I would call a forced immersion.” When pressed by a defense attorney, Cox doubled down: “Absolutely, this is child abuse.”

That testimony was based solely on Cox’s experience and opinion of what occurred. The judicial system gives great weight to the testimony of alleged experts. To be admitted as an expert witness, one needs to have training ...

Life Sentence for Murder Overturned by New DNA Technology

by Michael Fortino, Ph.D.

After nearly 10 years behind bars, Lydell Grant, now 42, is on his way to being exonerated after the highest criminal appellate court in Texas vacated his conviction following its review of revised DNA evidence analyzed through newly developed proprietary software known as “TrueAllele.” 

“I really believe that my story will be able to help someone else’s,” says Grant.

Nearly a decade ago, Grant was handed a life sentence in a Texas courtroom for the stabbing murder of Aaron Scheerhoorn outside a Houston gay bar in December, 2010.

To convict Grant, prosecutors relied mainly upon eyewitness testimony who described the assailant as black, age 25-30, and about 6 feet tall. Police believed the stabbing had been a “crime of passion.”

Following a tip describing the suspect’s car, an officer pulled over a vehicle in which Grant was driving just five days after the murder. At the time, Grant was driving on a suspended license. He also had an extensive criminal record that included aggravated robbery.

Seven witnesses then picked Grant out of a lineup as Scheerhoorn’s attacker. Throughout the investigation, Grant maintained his innocence, insisting he had never met Scheerhoorn and even produced an alibi ...

Seventh Circuit Holds Brain Injury May Allow Equitable Tolling to File Late Habeas Petition

by Dale Chappell

The U.S. Court of Appeals for the Seventh Circuit held on February 12, 2020, that a brain injury resulting from a stroke may be an “extraordinary circumstance” that could allow “equitable tolling” of the one-year clock for filing a petition for habeas corpus.

DeWayne Perry filed a habeas corpus petition in Indiana state court to attack his conviction and sentence for murder. Because he had suffered a stroke and was left aphasic — meaning he cannot speak and struggles to understand words — the state court appointed counsel to help him pursue his claims. That lawyer, however, abandoned Perry and did nothing for him. The court never appointed another lawyer.

Perry then asked the court to dismiss his petition without prejudice so that he could file another one after he found another lawyer who would help him. When Perry did file another petition later, the court dismissed it as an improper second petition, since his first was dismissed with prejudice. Perry then filed a habeas corpus petition in federal court, which was summarily dismissed as untimely filed. The district court judge ruled that Perry’s aphasia was not an “external obstacle” to allow equitable tolling. Perry appealed. ...

Michigan Supreme Court: Defendant Entitled to Self-defense Jury Instruction

by David M. Reutter

The Supreme Court of Michigan held a trial court erred in denying a defendant’s request for a self-defense instruction on the basis that a defendant who claims another person committed the homicide is not entitled to a self-defense instruction. It also held it was improper to exclude testimonial evidence that tended to support the self-defense theory where the trial court improperly made a factual finding that defendant and another person were the initial aggressors and could have fled.

The Court’s ruling came in an appeal brought by Nadeem Yousaf Rajput. Rajput and a man known only as Haus were riding in Rajput’s car on May 7, 2016, when a red Malibu with two occupants approached and fired shots at Rajput and Haus. After returning to Rajput’s home, Rajput and Haus went looking for the Malibu.

When they found the car, its sole occupant was Lakeisha Henry. They gave chase, trapped the vehicle, and approached Henry. An argument ensued, and multiple shots were fired, resulting in Henry’s death. At trial, Rajput argued Haus shot Henry when she reached for the gun in her car. The trial court denied a self-defense instruction. It also refused to admit ...

Ninth Circuit Orders Habeas Relief After California Concedes Conviction Should Be Overturned Due to Defense Counsel’s ‘Virulent Racism’

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit reversed the district court’s denial of Ezzard Charles Ellis’ petition for a writ of habeas corpus and remanded with instructions to issue a conditional writ after California conceded that Ellis’ conviction should be overturned due to his attorney’s virulent racism.

In 1991, Ellis and his codefendant (both black men) were convicted of murder and other crimes after being tried five times for their roles in a robbery of two men at a McDonald’s drive-thru in 1989. (The first two trials ended in mistrials due to missing witnesses, and the third and fourth trials resulted in hung juries.)

In 2003, Ellis learned that his trial attorney, Donald Ames, was a virulent racist after the Ninth Circuit granted habeas relief in two other cases that had found Ames ineffective. Ellis then obtained declarations from Ames’ former secretary (Ames died in 1999), Ames’ daughters, and a court clerk. The secretary, who is black, stated Ames referred to her as “that dumb little nigger” and more than once called her a “dumb fucking bitch.” Ames’ oldest daughter stated her father “especially ridiculed black people [saying] ‘trigger the nigger’ or ‘shoot the coon ...

Georgia Supreme Court Overrules 50 Years of Jurisprudence and Announces Courts Are to Consider Cumulative Prejudice of Trial Court and Counsel Errors

by Douglas Ankney

On February 10, 2020, the Supreme Court of Georgia unanimously ruled that reviewing courts are to consider the cumulative effect of trial court and counsel errors, overturning 50 years of prior jurisprudence.

At Antiwan Lane’s murder trial, Kevin Stallworth testified that Lane hired him to kill Hector Gonzalez for $10,000 after Lane had initially tried to hire Eddie Davis to do the deed. Stallworth mistakenly shot and killed Ivan Perez. After the murder, Lane refused to pay Stallworth because he had killed the wrong man.

Detective Delima testified, without objection, that an informant told him the shooting was a murder-for-hire. Delima also testified, over defense counsel’s objection, that Davis, “confirmed” that Lane had initially tried to hire him to kill Gonzalez.

Stallworth’s girlfriend, Brittany Thompson, testified, over defense’s objection, that Stallworth told her on the date of the murder, “I’m going to do it. He want me to do it, I’m going to kill him, I’m going to get the money.” Again over counsel’s objection, Thompson testified that Stallworth told her after the murder that Lane did not pay him because he shot the wrong person. The trial court overruled defense’s objections, ruling that Thompson’s repeating of ...

Third Circuit: Confrontation Clause Violated When Jury Is Told ‘Other Guy’ Referenced in Non-Testifying Codefendant’s Statement Is the Defendant

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit ruled that Arthur Johnson’s right to confront his accusers was violated when his non-testifying codefendant’s statement identifying “the other guy” as the shooter was read to the jury, and the jury was told that “the other guy” referenced in the statement was Johnson.

Johnson and his codefendant, Tyrone Wright, were tried together for the murder of alleged drug dealer Donnie Skipworth in Philadelphia. Prior to trial, Wright confessed to his involvement in the crime, stating that he and Abbas Parker were sitting in Wright’s van when Johnson approached. According to Wright’s statement, Johnson told the two men that he saw Skipworth up the street and that he was going to talk to him. Parker exited the van and accompanied Johnson. Johnson and Parker both had handguns. Moments later, Wright heard gunshots, and then Parker came running back, jumped into the van, and yelled for Wright to go. While the two were fleeing in the van, Parker told Wright that Johnson had shot Skipworth.

Over Johnson’s objections, Wright’s statement was read to the jury by the detective who had taken it, James Burns. However, the Superior Court ruled that ...

Louisiana Supreme Court: When an Identified Attorney Seeks to Assist a Person in Custody and Police Fail to Inform the Person, Inculpatory Statements Must Be Suppressed

by Douglas Ankney

The Supreme Court of Louisiana reaffirmed that the law of Louisiana requires law enforcement to inform a person in custody whenever an identified attorney is seeking an opportunity to assist the person. If the police fail to inform the person in custody of the attorney, any statement obtained and any fruits thereof must be suppressed.

Donovan Alexander gave police consent to search his residence on Vintage Drive in Kenner. Officers seized two pounds of marijuana, a firearm, and Carispodol pills. Alexander was arrested at the residence, and police then traveled to Alexander’s “stash house” on Curran Boulevard in Orleans Parish. A female occupant gave permission to search. Police recovered eight grams of heroin and a loaded firearm from a dresser-drawer.

Alexander was taken to Kenner Police Headquarters where he signed a waiver-of-rights form and told police not to charge the woman at the Curran Boulevard residence because the drugs and firearm were his.

Unknown to Alexander, attorney Dwayne Burrell had arrived at the Vintage Drive residence while the search was underway. Burrell was Alexander’s cousin and had represented him previously. Burrell showed officers at the scene his “bar card,” told the officers he wanted to speak ...

D.C. Circuit: 18 U.S.C. § 1114 Does Not Apply Overseas But § 924(c) Does

by Douglas Ankney

The U.S. Court of Appeals for the D.C. Circuit held that 18 U.S.C. § 1114 does not apply to territories outside the United States. However, the Court ruled that 18 U.S.C. § 924(c) does apply extraterritorially in specific circumstances.

While in Mexico, Jose Emanuel Garcia Sota and another defendant, Jesus Ivan Quezada Piña, attacked American special law enforcement agents Victor Avila and Jaime Zapata. Zapata was killed, but Avila survived. The defendants were tried in Washington, D.C., where each was convicted of two counts of killing an officer or employee of the United States in violation of 18 U.S.C. § 1114, one count of killing a person protected by international law in violation of 18 U.S.C. § 1116, and one count of using a firearm while committing a crime of violence in violation of 18 U.S.C. § 924(c). On appeal, they argued that §§ 924(c) and 1114 are not extraterritorially enforceable.

The D.C. Circuit observed “[a]ccording to a longstanding canon of statutory interpretation, our courts presume that American laws do not apply outside of the United States — unless Congress directs otherwise.” And “[t]he canon ‘rests on the perception that Congress ordinarily legislates with respect to domestic, ...

Maryland Court of Appeals Announces, When Requested, Trial Courts Must Ask During Voir Dire Whether Jurors Will Follow Court’s Instructions on Presumption of Innocence, Burden of Proof, and Right Not to Testify

by Douglas Ankney

On January 24, 2020, the Court of Appeals of Maryland announced that henceforth trial courts, when requested, must ask potential jurors during voir dire if any of them are unwilling or unable to follow the court’s instructions on the presumption of innocence, the burden of proof, and the right not to testify. In so doing, the Court of Appeals expressly overruled Twining v. State, 198 A.2d 291 (Md. 1964), which held that courts need not ask such questions of potential jurors.

Prior to jury selection for Tshibangu Kazadi’s murder trial, the defense asked the trial court to ask potential jurors the following questions during voir dire: (1) “Are there any of you who would be unable to follow and apply the Court’s instructions on reasonable doubt in this case?”; (2) “Is there a member of the jury panel who would hesitate to render a verdict of not guilty if you had [sic] hunch that the Defendant had committed the alleged crime, but were not convinced of that fact beyond a reasonable doubt?”; (3) “Is there any member of the jury panel who would be unable to give the Defendant the benefit of the presumption of ...

Sixth Circuit: Ohio’s Stringent Post-Conviction Filing Deadline Opens Window for Federal Review Under Trevino

by Anthony Accurso

The U.S. Court of Appeals for the Sixth Circuit held that Ohio’s strict application of its post-conviction challenge deadline deprived a defendant of meaningful review of his ineffective assistance of counsel claim. 

Vincent White was convicted in an Ohio court of several violent crimes, including six counts of murder, and he was sentenced to life without parole. While preparing his direct appeal, White discovered that his trial attorney, Javier Armengau, was under indictment for 18 serious felonies during the time he represented White. Armengau was convicted on nine of the counts. 

White filed a timely direct appeal which asserted, among other things, a claim that Armengau’s indictment constituted a conflict of interest amounting to ineffective assistance of counsel (“IAC”). The Ohio Court of Appeals decided it could not adequately weigh White’s IAC claim because the record on appeal was insufficient, and the court was limited to facts established by the trial court. The Court of Appeals implied that a motion for post-conviction relief would be the proper vehicle for his claim because it would allow for an expansion of the record. 

However, the Court of Appeals issued its decision four months after the deadline ...

The Faulty Science of Breathalyzers

by Jayson Hawkins 

The forensic sciences, once believed to offer infallible evidence against a wide spectrum of crimes, have in many instances been exposed as little more than smoke and mirrors. 

To the growing list of faulty, misleading, or disproven methods can be added alcohol breath-testing.

A recent investigation by The New York Times has exposed the supposedly scientific devices that conduct the tests to often be unreliable at best; at worst, they are generators of bogus results that have condemned untold number of drivers to undeserved criminal convictions. 

According to the Times, there are a million drunk-driving arrests annually in the U.S. While they often begin with an impairment test such as balancing on one foot, they almost always end with blowing into a black box meant to measure the percentage of alcohol in the driver’s system. If the machine spits out an estimate greater than or equal to 0.08, the driver’s luck is about the take a downward turn. 

The seeming conclusiveness of a breath-alcohol reading discourages anyone from fighting the result in court. The best option is often pleading guilty for a reduced sentence or to avoid jail time even when the ...

Fact or Fiction, Television Crime Shows Ignore Racism and Reality

by Michael Fortino, Ph.D.

Both fictional and non-fictional depictions of crime and justice abound on television, film, and throughout the media, yet nearly all exist in an alternate reality ignoring racism and balance. Americans have developed a boundless appetite for such fare in our society, yet they are being fed a skewed and unrealistic version of the criminal justice system.

Recently, Color of Change, a not-for-profit civil rights organization studied 26 scripted series that focused on crime and justice in the 2017-2018 season. The study claims that many of these productions advance “distorted representations of crime, justice, race and gender in media and culture.” According to Valencia Gunder, a Miami community activist, “the media continues to represent preconceived notions based on stereotypes.” She goes on to suggest, “The crime genre glorifies, justifies and normalizes the systematic violence and injustice meted out by police, making heroes out of police and prosecutors who engage in abuse, particularly against people of color.”

Non-fiction shows like Live PD and Cops, which follow the “reality” show format, often portray police as beleaguered defenders and public servants who sometimes overstep constitutional limits in order to promote safety. This simplistic idea of “justice” heralds back to ...

Third Circuit Holds ‘Bare’ Arrest Record Insufficient to Support Higher Sentence

by Dale Chappell

In a case that reiterated the limits a federal sentencing judge may consider at sentencing, the U.S. Court of Appeals for the Third Circuit held that when a sentencing judge relies on “bare” arrest records in a defendant’s criminal history to justify imposing a higher sentence, it is a violation of due process and plain error, requiring remand for resentencing.

After a confidential informant set up Tyrone Mitchell in three controlled drug buys, the Pennsylvania Bureau of Narcotics Investigation (working with federal agencies) obtained search warrants to comb through two houses where it believed Mitchell kept his drugs. Between the two houses, police seized drugs and guns and charged Mitchell with 17 counts of various drug and gun crimes. At the end of a seven-day trial, a jury found Mitchell guilty of all charges.

The issue in Mitchell’s case came down to sentencing. Mitchell himself described his criminal history as “staggering,” and indeed, he did qualify as a career offender. That put him at a sentencing range of 30 years to life. But the sentencing judge did more than just rely on Mitchell’s prior convictions to impose a sentence of 85 years in prisons without parole. He ...

Sex Offender Registries Grounded in False Notions

by Anthony Accurso

Nigeria is implementing a U.S.-style public registry for sex offenders. “Campaigners have hailed the launch of Nigeria’s first sex-offender registry as a vital step toward tackling reported cases of sexual abuse, which are rising across the county,” reports The Guardian. Despite a dearth of statistics, UNICEF estimates that one in four girls has experienced sexual violence by age 18. However, offenders often go unpunished because of cultural and institutional reasons. Victims are treated poorly, and complaints are not treated seriously. 

Oluwaseun Osowobi, the director of a nonprofit victim support organization, said of the registry: “It enables bodies such as schools and hospitals to conduct background checks and it will deter sex offenders because they will know their names will be published, affecting their employment and role in society.”

This is almost certainly true, as the U.S. experiment has shown. Offenders are shamed into homelessness and joblessness in the United States, often for life. 

But will the registry prevent sexual assault of women and children? If the U.S. experience is any indication, the Nigerian registry will not reduce incidents of sexual assault. Registries were implemented in the 1990s based on two erroneous notions: (1) ...

Pennsylvania Supreme Court Holds Retention of Defendant’s ID Card Constitutes ‘Seizure’ for Fourth Amendment Purposes

by Dale Chappell

The Supreme Court of Pennsylvania held on January 22, 2020, that the retention of a person’s identification card by law enforcement constituted a “seizure” under the U.S. Constitution, triggering the protections of the Fourth Amendment’s prohibition on unreasonable seizures.

The case came before the Court after Harold Cost was successful in his efforts to suppress evidence found after an arrest, where Philadelphia police officers had retained his ID card during questioning and subsequently found that he had a firearm. The Commonwealth appealed that decision, arguing that the incident was merely an encounter and not a seizure. The Superior Court agreed on appeal and reversed the suppression court’s decision, and the Supreme Court agreed to hear the case.

At the suppression hearing, one of the officers testified that Cost and his friends were stopped in an alley in the city known for high crime activity. In an incident that the officer said “lasted less than a minute,” Cost handed the officer his ID card, and a warrant check came back all clear. The officer also admitted that he didn’t see any criminal activity by Cost and his friends.

However, the two officers that stopped the men assumed a ...

Kansas Supreme Court: Claim of Illegal Sentence Raised for First Time on Appeal Entitled to Merits Review

by Michael Berk

The Supreme Court of Kansas held that a court of appeals must consider a claim that a criminal defendant’s sentence is illegal even when raised for the first time in the appellate court.

In 1995, Billy Sartin was convicted of several crimes in Kansas. His sentence was enhanced under the Kansas Sentencing Guidelines, K.S.A. 21-4701 et seq., based on five prior convictions in Illinois.

In Kansas v. Murdock, 323 P.3d 846 (Kan. 2014) (Murdock I), overruled by Kansas v. Keel, 357 P.3d 251 (Kan. 2015), the Kansas Supreme Court ruled that all prior out-of-state convictions must be scored under the Guidelines as “nonperson,” rather than “person,” crimes. Before Keel, in June of 2015, Sartin filed a motion to correct an illegal sentence under K.S.A. 22-3504(1), alleging that his Illinois conviction for “aggravated criminal sexual abuse” should have received less weight in determining his lengthy sentence.

The district court denied Sartin’s motion because the holding in Murdock I, on which his argument depended, had been abrogated. On appeal, Sartin expanded his claim to contest all five of his prior convictions on constitutional grounds, relying on decisions of the U.S. Supreme Court restricting ...

Reform-Minded Prosecutors Use Charging Discretion to Benefit Communities

by Anthony Accurso 

Now that the nation is evolving from “tough on crime” to “smart on crime” tactics, reform-minded prosecutors are making big changes by exercising their discretion on how and when to prosecute low-level offenders. 

At the highest levels of government, politicians in both parties have been embracing new modes of thinking about criminal justice. However, local district attorneys have long been incentivized to prosecute as harshly as possible, as failing to do so costs elections. Changing this narrative has been the focus of reform movements for the last half-decade, and the results are that new DAs have been elected on platforms of reducing prosecutions, usually in favor of diversionary programs. 

From March 2014 to June 2016, Milwaukee County District Attorney John Chisholm used diversion or deferred prosecutions in more than 1,100 cases with success rates of 81 percent and 77 percent, respectively. Using research-backed risk-assessment models, Chisholm identifies likely candidates for such programs, and the success rates have made for a safer city and an improved relationship between the police and the communities they serve. 

King County, Washington, DA Daniel Satterburg, whose jurisdiction includes Seattle, introduced the Law Enforcement Assisted Diversion (“LEAD”) program, which ...

Nevada Supreme Court: Duress Defense May be Used for Non-Death Penalty Charges, Even When Connected to Charges Punishable by Death

by Dale Chappell

The Supreme Court of Nevada held on December 26, 2019, that the defense of duress — as codified in NRS 194.010(8) but is not available in connection with any crime that’s punishable by death — can be asserted as a defense to a crime that is not punishable by death but requires “proof of intent to commit a crime that is punishable by death.”  

The question of first impression came before the Court when Ivonne Cabrera appealed her convictions and life sentence for murder, attempted murder, conspiracy to commit murder, and burglary. She was found guilty by a jury of all charges after the district court ruled that she could not raise a defense that she acted under duress. The district court ruled that because the charges were all tied to the capital murder charge, the duress defense wasn’t available.

The offense occurred after someone who loaned his car to Cabrera got into an argument with her when she refused to return it. Jose Gonzalez, a friend of Cabrera’s, then went with her to the person’s apartment and shot and killed him and others, while wounding yet another person. Cabrera claimed that she participated in ...

New Orleans Sheriff’s Office Tracked Cellphones Absent Warrants

by Chad Marks

Securus Technologies, one of the leading providers of phone-messaging services for correctional facilities, reportedly captured thousands of coordinates showing cellphone locations for clients absent a warrant. Through Securus, both Jefferson and Orleans Parish sheriff’s offices were able to capture data used for criminal investigations, The Appeal reports.

Contracts showed that Securus gave its clients access to location data for cellphones that made or received calls from correctional facilities. As part of the contract, Securus also provided location data regardless of whether or not the phone connected with a call at the prisons. 

In circumventing the Fourth Amendment, all the sheriff’s office had to do was provide a technology company with the cellphone number. In return, Securus handed over the phones’ location data.

In mid-2018, Securus disabled the technology that intruded upon citizens’ cellphone data. Surprisingly, the dismantling occurred just a few short weeks before the U.S. Supreme Court ruled that historical cell-site location information is protected by the Fourth Amendment. In that case, Carpenter v. United States, 138 S. Ct. 2206 (2018), the Court made it clear that acquisition of such data constitutes a search under the Fourth Amendment and that a warrant is necessary ...

Sex Offenders Go to W.A.R.

by Ed Lyon 

Seventy-two-year-old grandmother Vicki Henry has a mission in life. Because of what she perceives as injustices affecting her son, who is serving a 25-year sentence on child pornography convictions, she aims to do away with all public sex-offender registries. She heads a small group of like-minded women who unite under the moniker of Women Against Registry (“W.A.R.”). 

Henry, of Missouri, has a toll-free number that convicted sex offenders and their friends and family members can call. She fields scores of calls every month, giving advice and support to help others in need.

She is not alone in her belief and willingness to help others. There are two more W.A.R. soldiers who have extensions on the toll-free line who also offer consolation and advice to sex offender registrants and those affected by registration laws. 

Southwestern Law School professor Catherine Carpenter agrees with Henry concerning sex-offender registration laws. “At its heart, the registry doesn’t work,” Carpenter stated, adding that “it’s a failed experiment.” 

It is an experiment that nevertheless carries with it the force and effect of law because, like it or not, sex offender registration is the law. At the federal level, registration is ...

California Court of Appeal: Hunch That Proves Correct Is Not Reasonable Suspicion for Traffic Stop

by Douglas Ankney

Division Two of the Fourth Appellate District for the California Court of Appeal ruled that an officer must have reasonable suspicion based on articulable facts to initiate a traffic stop, and a hunch, even when it proves correct, is insufficient.

After a jury convicted Blanca Luna Mendoza of transporting for sale more than 4 kilograms of cocaine, she appealed, arguing that the trial court erred when it denied her motion to suppress the evidence. U.S. Border Patrol Agent Arturo Acosta testified at the suppression hearing that his training included behavior analysis, which he described as “being able to — for us to be able to pull over a vehicle, we need reasonable suspicion. For me, reasonable suspicion is a hunch of articulable facts that will allow us to pull over a vehicle. The explanation could be something simple [like] a lane change, the behavior [of] the person in the vehicle, the vehicle slowing down.”

In November 2017, Acosta was patrolling Interstate 15 in San Diego County near the U.S.-Mexico border (a known drug trafficking corridor) in an unmarked car when he ran Mendoza’s license plate and learned of the vehicle’s recent border crossing. Because of ...

Massachusetts Supreme Judicial Court: Police Must Inform Arrested Driver That Passenger Can Assume Custody of Vehicle if Lawful and Practical as Alternative to Impoundment

by Douglas Ankney

The Supreme Judicial Court of Massachusetts ruled that, where officers are aware that a passenger could lawfully assume control of a vehicle, it is improper to impound the vehicle upon the arrest of the driver without first offering the option to the driver.

Two Boston police officers observed a Honda Accord with what appeared to be a defective taillight. A check of the vehicle’s registration number revealed that its owner, Wilson Goncalves-Mendez, had an outstanding misdemeanor default warrant. The officers stopped the vehicle and verified Goncalves-Mendez was the driver.

There was a passenger in the front seat who complied with one officer’s request for identification. Computer checks revealed the passenger had no outstanding warrants, his license was valid, and he was not a suspect in any other crimes. Furthermore, the passenger did not appear to be under the influence of any intoxicating substances.

One of the officers informed Goncalves-Mendez he was under arrest because of the default warrant and that his vehicle would be towed. Per departmental policy, the vehicle was searched and inventoried in preparation for impoundment. During the search, a firearm was discovered under the driver’s seat, and Goncalves-Mendez said it was his. He was ...

Ohio Supreme Court: Ineffective Assistance of Counsel Analysis Applies to Failure to Seek Waiver of Court Costs

by David M. Reutter

The Supreme Court of Ohio held that when trial counsel fails to request a waiver of costs on behalf of a defendant who has previously been found indigent, the reviewing court must make a prejudice determination under the ineffective assistance of counsel analysis.

The Court’s decision came in a certified-conflict case in which the Court was asked to determine whether trial counsel’s failure to file a motion to waive costs at a defendant’s sentencing hearing constitutes ineffective assistance of counsel when the defendant has previously been found indigent. This question arose after the Fifth and Eighth District Court of Appeals reached differing conclusions on the matter.

The Eighth District in State v. Gibson, 2017 Ohio App. LEXIS 107 (2017), found that “a prior finding by the trial court that a defendant was indigent demonstrated a reasonable probability that the trial court would have waived costs had counsel made a timely motion.” In the case before the court, the Fifth District rejected that rationale. It found that opinion predated a 2013 amendment to R.C. 2947.23(C), which allows a trial court to waive costs of prosecution at any time after sentencing. As the appellant, Benjamin A. Davis, ...

California Supreme Court: Positioning Computer Monitor to Obstruct Defendant’s View of Complaining Witness Violates Confrontation Clause

by Douglas Ankney

The Supreme Court of California ruled that repositioning a computer monitor so that it blocked the defendant’s view of the witness testifying against him violated the Confrontation Clause.

Jason Arron Arredondo was tried by a jury on several sexual offense charges against F.R., Ar.R, An.R, and M.C. At the time of trial, F.R. was 18 years old. When she entered the courtroom to take the witness stand, she began crying. After the court asked her if she needed a moment, F.R. answered, “I think so.”

The court took a 30-minute recess to allow her to regain her composure. After the jury returned to the courtroom, F.R. reentered and gave her testimony. About 45 minutes later the court took another recess. Outside the jury’s presence, the court stated that during the previous recess, the monitor had been repositioned to block some of F.R.’s view of Arredondo. Defense counsel objected because the monitor blocked Arredondo’s entire view of the witness. The court observed that it was a very small computer monitor, and it was repositioned so the witness didn’t have to look at the defendant.

The prosecution then stated that the defendant had “looked at her for the first ...

New Lie Detectors Are On the Way, But Are They Better Than the Old One?

by Anthony Accurso 

New “lie detectors” are being marketed as viable replacements for the aging, debunked polygraph and are being tested in environments where the polygraph never penetrated. But questions remain whether such devices are any improvement on the old one. 

Many people are familiar with the classic “lie detector,” aka the polygraph. It has been a mainstay in popular fiction, especially police shows such as Law & Order, where it is used to determine whether someone is guilty or innocent. It also was popular in the U.S. for employment screening until several studies called its results into question in the 1980s, and the government passed the Federal Employee Polygraph Protection Act of 1988 preventing its use by private employers. 

The polygraph — “poly” meaning “many” and “graph” meaning “writing” — measures activity of the sympathetic branch of the autonomic (involuntary) nervous system as expressed by fluctuations in heart rate, respiratory rate, blood pressure, and skin conductivity (perspiration).

The problem is that, while these vectors are often influenced by the fear of being caught lying, the reactions associated with lying can be quite variable, and no scientific studies have demonstrated that the emotional response linked to lying ...

Jury Nullification as a Cure for Prosecutorial Overreach

by Anthony Accurso

An article published by ProsecutorialAccountability.com seeks to educate the public about the history of jury nullification and how reversing statutes and case law that prevent juries from knowing a defendant’s possible sentence could help curb prosecutorial overreach. 

Jury nullification is the term applied when a jury refuses to convict a defendant despite sufficient evidence of guilt. Juries are rarely told that this is even an option (standardized jury instructions often do not include language about it), but its purpose goes to the heart of the reason for empaneling a jury: to seek justice, not merely to obtain a conviction. In times when prosecutorial overreach is rampant and political solutions are not forthcoming, jury nullification can be an effective tool for a community to reject laws and punishments that it deems unjust. 

Unfortunately, defendants and their attorneys are often barred from informing juries about applicable mandatory minimum sentences. The U.S. Court of Appeals for the Second Circuit has held that a trial court may, with good reason, inform a jury of the potential sentence, but “it is not the proper role of courts to encourage nullification.” Even this attitude is enlightened compared to most jurisdictions, which ...

Louisiana Supreme Court: State Abused Charging Authority by Dismissing and Reinstituting Charges to Circumvent Adverse Court Ruling

by Anthony Accurso 

The Supreme Court of Louisiana held that the district attorney’s office abused its charging authority when it dismissed, then immediately refiled, charges against a defendant to circumvent the trial court’s decision to exclude the State’s expert witness. 

In December 2016, Fred Reimonenq was indicted in Orleans Parish on charges of first-degree rape, attempted first-degree rape, and sexual battery of a victim under the age of 13. Reimonenq’s trial was scheduled to start September 25, 2018.

Two days prior to trial, the State submitted to defense counsel the curriculum vitae of Dr. Anne Troy, Ph.D., a sexual assault nurse examiner. However, it wasn’t until the morning of the trial that the State notified the defense that it planned to use Dr. Troy as a witness to interpret the results of the victim’s post-assault exam. 

The defendant filed a motion to exclude Dr. Troy’s testimony because the State had failed to notify the defense of its intent to use Dr. Troy in a timely manner under La.C.Cr.P. art. 719, which made it difficult or impossible to prepare a defense without such notice. The trial court granted defense’s motion citing prejudice to the defendant. In response, ...

NYC Drug Prosecutor Bucks Trend of Releasing List of Cops with Credibility Issues

by Douglas Ankney

Through the Freedom of Information Law, communications, memos, and correspondence were obtained that reveal the Office of the Special Narcotics Prosecutor’s (“OSNP”) database has information flagging police officers with potential credibility issues.

The database purportedly contains judges’ assessments of officers’ testimony, NYPD disciplinary records, and notes about officers that the prosecutors made. But unlike the DAs from the five boroughs of New York City who released lists of officers linked to concerns about their ability to be truthful, the OSNP has refused to release all but nine disclosure letters.

Bridget G. Brennan, who was appointed to lead the OSNP, justified the refusal by citing a recent court ruling that blocked the disclosure of similar records in Manhattan, plus cited other public records exemptions.

In a statement, the OSNP said it places “great value on transparency” and claims it was only because of technical problems that records of judicial findings were not released.

However, attorney Janos Marton — a Manhattan DA candidate who has called for the abolition of the OSNP — said, “Any other district attorney is going to have to face voters and put their record before voters, but this office does not have to ...

Racial Disparity at Sentencing on the Rise

by Anthony Accurso 

A new Council on Criminal Justice report shows disturbing trends in worsening sentencing disparities for black and Latinx people, even as the U.S. softens its stance on non-violent and drug crimes, The Appeal reports.

The report aggregated data from the years 2000 and 2016 and compared the statistics for each racial category as a population in prison, in jail, on probation, and on parole.

The only trend that seems to be running contrary to increasing disparity is that white people were being sent to prison or jail, or placed on probation or parole, more often in 2016 than in 2000.

This is partly a function of long sentences getting longer and possibly influenced by the opioid crisis spreading through poor and middle-class white communities.

However, black people are still five times more likely to be in prison and 3.8 times more likely to be in jail than white people. This, despite the number of black men in prison for drug offenses dropping by half, and the number of black men incarcerated for property offenses being down 24%.

The report’s authors point out that this is being driven by more black men being incarcerated for violent offenses ...

Colorado Supreme Court Announces Implied Bias the Same as Actual Juror Bias, Requiring Automatic Reversal

by Anthony Accurso 

The Colorado Supreme Court announced a rule, which holds that when a defendant raises a for-cause challenge to an impliedly biased juror under 16-10-103(1), C.R.S., a structural error arises when that juror serves on the jury. The Court instructed that “a juror who is presumed by law to be biased is legally indistinguishable from an actually biased juror” with respect to a criminal defendant’s constitutional right to an impartial jury. 

Abdu-Latif-Kazembe Abu-Nantambu-El was charged with numerous offenses, including first-degree murder, second-degree murder, and two counts of first-degree burglary in Colorado. After a jury trial, he was convicted on the above-listed counts and sentenced to life without parole. 

On appeal, he raised an issue of juror bias stemming from the trial court’s denial of a for-cause challenge to a potential juror under 16-10-103(1), C.R.S. The Legislature codified a list of relationships that constitute implied bias and, upon challenge, must result in the excusal of the potential juror. At issue was subsection (k), which states implied bias exists if the prospective juror is a “compensated employee of a public law enforcement agency or a public defender’s office.” 

Juror ‘J’ worked as a financial grant manager ...

Rhode Island Supreme Court Reverses Conviction Due to Prosecutor’s Remarks and Jury Consideration of Inadmissible Evidence

by Douglas Ankney

The Supreme Court of Rhode Island vacated the first-degree child molestation sexual assault conviction against Henry G. Bozzo due to a remark made by the prosecutor during closing argument together with the trial court’s abuse of discretion in admitting evidence of prior bad acts.

Seven-year-old Veronica told her parents that Bozzo had placed his finger inside her vagina. She and her parents did not immediately report it to the authorities because they believed it to be an accidental touching. But when Bozzo was later arrested for possessing child pornography, they reported it. The defense claimed the touching was accidental. Prior to trial, Bozzo and the State entered into a stipulation that was read to the jury: “[O]n May 9, 2016, Henry Bozzo before a justice of the Superior Court pled nolo contendere to one count of possession of child pornography and was sentenced to four years suspended sentence and four years of probation with specific conditions of the sentence and probation.”

The Superior Court instructed the jury that they could consider the stipulation only for the purpose of determining if the touching was intentional. However, over Bozzo’s objection, the Superior Court also permitted Detective Kevin Petit to ...

Warrant Gives Police Access to DNA Database

by Jayson Hawkins 

Advances in DNA technology over recent years have enabled people to discover genetic predispositions, reconstruct family trees, and track down lost relatives. Nearly 30 million users have uploaded their profiles to DNA sites in hopes of reconnecting with their past or catching a glimpse of future health issues. For law enforcement, however, these databases hold another potential — that of solving untold numbers of cold cases virtually at the touch of a button. 

Individuals who have submitted their genetic information to the sites generally have done so under a presumption of privacy. Ancestry.com and 23andMe, the largest sites with a combined 25 million users, operate under the promise that they will not share their customers’ personal records. Even sites that offer free services tend to shield their users’ data from being accessed for ulterior purposes. GEDmatch, for instance, instituted a policy in May 2019 that allowed law enforcement to search only users who had agreed to it. As of November of last year, less than 15 percent of the site’s users had. 

Before GEDmatch offered the privacy option, a detective in Orlando, Michael Fields, had used the service to find a suspect from a ...

New York to Seal Convictions for Small Amounts of Marijuana

The state of New York is abuzz about a new law that eases penalties for low-level marijuana possession and expunges thousands of low-level cannabis convictions. The new law gives fines instead of jail time of up to 90 days for those carrying small amounts of pot in public. 

“The new decriminalization law also reduces the penalty for minor marijuana possession so that anyone — regardless of their criminal history — caught with less than an ounce of weed will be fined $50, while a maximum fine of $200 will be issued to anyone with one to two ounces,” rollingstone.com reports. “Lastly, the new law establishes a path for hundreds of thousands of New Yorkers saddled with low-level marijuana records to have their records automatically expunged of crimes involving the possession of 25 grams or less of marijuana.”

Over 202,000 convictions in New York — from the late 1970s through mid-June 2019 — will be sealed, and 24,409 people will no longer have a record of crime, Janine Kava, the New York State Division of Criminal Justice Services spokeswoman, told CNN.

Through the years, criminal penalties for marijuana use in New York fell disproportionately on blacks and Hispanics. “For too ...

Nevada Supreme Court: 26-Month Delay Between Charges and Arrest Constitutes Speedy Trial Violation

by Anthony Accurso 

The Supreme Court of Nevada held that a district court did not abuse its discretion after the State’s “gross negligence” caused a 26-month delay between charges filed and arrest.

Rigoberto Inzunza was living with 9-year-old E.J.’s mother in Las Vegas in 2008. During this time, Inzunza is alleged to have sexually assaulted the girl when her mother was at work and her siblings were asleep. This abuse is alleged to have continued until Inzunza moved to New Jersey around 2009.

In late 2014, E.J. disclosed the abuse during therapy, and her mother took her to the North Las Vegas Police Department (“NLVPD”) to file a complaint. During their meeting with Detective Mark Hoyt, E.J.’s mother gave him information from Inzunza’s Facebook profile, which indicated his home and work addresses in New Jersey. Hoyt turned the complaint over to the District Attorney’s Office, which filed charges and issued a warrant for Inzunza’s arrest.

However, the DA’s office did not notify the NLVPD about the warrant being issued, nor did the department follow-up on the case.

Inzunza was arrested 26 months later on January 29, 2017, and filed to have the charges dismissed due to the delay between ...

New Jersey Tightens Reins on Civil Asset Forfeiture

by Douglas Ankney

In following a trend among the states, New Jersey has passed legislation designed to rein in the abuse of civil asset forfeiture.

On January 13, 2020, the Democratic-controlled Senate passed a bill requiring a criminal conviction in certain cases before police and prosecutors may take private property using civil forfeiture. The law will curtail some instances of prosecutors and police seizing private property from owners who were neither convicted nor even charged with a crime.

The bill requires a criminal conviction before authorities may seize up to $1,000 in cash or up to $10,000 in property. Jennifer McDonald, a senior research analyst at the Institute for Justice, said the bill was a “modest improvement” but “[w]e want them to continue to push forward for ending civil forfeiture entirely and replacing it with criminal forfeiture.”

And on the same day the bill was passed, New Jersey Governor Phil Murphy signed a bill into law that requires quarterly reporting by police departments explaining their forfeiture activities. Murphy called the law “a huge step forward for transparency and accountability.” He added, “New Jersey law enforcement agencies currently have no permanent statutory requirement to disclose civil asset forfeitures. This legislation ...

U.S. District Judge Blows Open ATF Fake Stash-House Stings, Wants to Know Why They Only Target Minorities

by Dale Chappell

“Psst ... Wanna make some easy money? I got this drug dealer who owes me big time. You help me rob him, and I’ll split it all with you — drugs, money, everything. You in? Good. Meet me at the High School at 10. Oh, and bring guns and some friends. This house has armed guards.”

We all know what happens next. The guys show up at the meeting place, and they’re taken down by agents in military gear. They’re charged with conspiracy to rob the stash house, plus they get hit with whatever amount of drugs the government says would’ve been in the nonexistent house. And because they brought guns, at the government’s urging, firearms charges are piled on, often with lengthy consecutive sentences.

It’s called a fake stash-house sting, and it’s the government’s laziest form of law enforcement. It’s no secret that fake stash-house stings target minorities. Lots of people have argued this point, but now one federal judge is demanding that the government turn over some evidence that fake stash-house stings don’t target minorities.

Judge Jed Rakoff of the U.S. District Court for the Southern District of New York (“SDNY”) has ordered the government ...

Cops Killed Nearly 13 Times More People Than Mass Shooters

by Bill Barton

Mass shootings in the U.S. “have claimed the lives of 339 people since 2015,” which, while certainly egregious, is a mere drop in the bucket compared to the 4,355 citizens killed by police during the same timeframe, according to thefreethoughtproject.com.

There is no question that some of these people were armed and dangerous, but way too many were innocent and unarmed, such as Daniel Shaver, a father of three who was killed in 2016 by Philip Brailsford, who was charged with murder but eventually acquitted. In fact, he was allowed to retire from the Mesa, Arizona, police force with an accidental disability pension and medical retirement. 

Meanwhile, “If we compare the 399 citizens killed by police in the same time frame, the comparison is off the charts. We are talking about a 1,280 percent difference.” 

According to The Washington Post, 1,004 individuals were “shot and killed by police in 2019,” or 12 more than the previous year.

In the U.S., “the overall homicide rate is 4.9 per 100,000 among the citizens,” thefreethoughtproject.com reports. 

Thanks to independent watchdog groups that decided to document this number on their own, we have a total number of ...

News in Brief

Alabama: Blake Duke, a former Mobile police officer of the month, was placed on desk duty after video taken by a bystander and posted online showed him choking a handcuffed Howard Green Jr. and slamming him into a squad car during an arrest, thefreethoughtproject.com and WWMT.com reported in February 2020. “Why are you choking him?” an onlooker is heard on the video posted by fox10tv.com. Police were trying to arrest Green for three active warrants for harassment or harassing communications. “He also had resisting arrest and disorderly conduct charges added from [the] incident. Green has been arrested more than 20 times since 1993.” Other charges included having no insurance, running a red light, failure to obey, resisting arrest and disorderly conduct. Police Chief Lawrence Battiste said the suspect might have spit in the officer’s face. “He could be the worst criminal in the world, but our job is to make sure that we treat all citizens in this community with dignity and respect in the performance of our duties,” Battiste said. 

Alaska: The state’s Village Public Safety Officer Program (VPSO) is under fire for failing to recruit, train and ultimately retain qualified police officers for rural areas ...

 

 

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