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Criminal Legal News: May, 2020

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Volume 3, Number 5

In this issue:

  1. Changing Perception, Changing The Law (p 1)
  2. California Supreme Court Finds IAC, Vacates Conviction in LAPD Officer’s Murder Case (Again) – 36 Years Later (p 8)
  3. Ninth Circuit Opens Door for Savings Clause Relief, Recognizes ‘Actual Innocence’ for Mandatory Career Offender Sentences (p 10)
  4. Seventh Circuit: Trial Judge Violated 5th Amendment by Modifying Instructions to Allow Jury to Convict on Offenses Not Charged in Indictment (p 11)
  5. Attacking the Guilty Plea: The Ineffective Assistance of Counsel Standard (p 12)
  6. Suspending the Constitution: Police State Uses Crises to Expand Its Lockdown Powers (p 14)
  7. SCOTUS: ‘Serious Drug Offense’ Under ACCA Is Self-Defining, Match with Equivalent Federal Offense Not Required (p 17)
  8. Kansas Supreme Court Holds Threat of Violence Statute Violates First Amendment to Extent it Criminalizes ‘Reckless’ Conduct (p 18)
  9. SCOTUS: Advocating for Shorter Sentence Sufficient to Preserve Claim that Sentence Imposed Greater Than Necessary to Comply With 18 U.S.C. § 3553(a) (p 18)
  10. New York Court of Appeals Orders Resentencing Because Trial Court Relied on Testimony from Improperly Unsealed Record (p 19)
  11. California Court of Appeal: Senate Bill 1437 Abrogates ‘Natural and Probable Consequences Doctrine’ in Attempted Murder Prosecutions and Applies Retroactively to Cases on Appeal (p 20)
  12. Sixth Circuit: Cardiologist’s Right to Due Process Violated Where District Court Ordered Government to Not Disclose Third Party’s Expert Evaluation of Medical Care Provided by Him (p 20)
  13. En Banc Ninth Circuit Provides Guidance on When Amended Habeas Petition ‘Relates Back’ to Original Claims to Avoid Dismissal as Untimely (p 22)
  14. First Circuit: Home Search Affidavit Failed to Establish Nexus of Crime and Evidence (p 23)
  15. First Circuit: Securing a Weapon Not Used in Offense Is Not Exigent Circumstance Permitting Warrantless Entry and Search of Suspect’s Home (p 24)
  16. Massachusetts Supreme Judicial Court Reverses Murder Conviction Due to Insufficient Evidence (p 24)
  17. Second Circuit Holds Denial to Proceed Under Pseudonym by Magistrate Judge Is Immediately Appealable (p 26)
  18. Fifth Circuit Settles In-Circuit Confusion, Holds Implicit Extension of Time to File State Appeal Tolls AEDPA Clock to File Federal Habeas Petition (p 26)
  19. Pennsylvania Prosecutors Cash in on Low-Level Drug Crimes (p 27)
  20. Former Florida Deputy Jailed for Fabricating Drug Evidence (p 28)
  21. Prosecutors Overrepresented Among Federal Judges (p 28)
  22. ‘Travel Papers’ and the Pandemic Patriot Act 2.0 (p 30)
  23. FBI ‘Assessing’ Black Americans (p 31)
  24. California Supreme Court: Refusing to Testify Insufficient to Constitute Accessory After the Fact (p 32)
  25. Seventh Circuit: Unsupported CI Statements Insufficient to Justify Higher Drug Quantity for Sentencing (p 32)
  26. Ninth Circuit: Proposition 47 Creates New, Intervening Judgment to Allow Another Federal Habeas Petition Attacking Entire Case (p 33)
  27. Seventh Circuit Vacates Sentence for Failure to Explain Extreme Departure of Guidelines Range (p 34)
  28. Coronavirus: Will Courts Continue To Operate, Preserving the Rule of Law? (p 34)
  29. Repeat Offenders May Be the Result of Different Brain Composition (p 36)
  30. Washington Supreme Court Announces PRP Petition ‘Final’ Upon Issuance of Certificate of Finality to Allow Tolling of Federal Habeas Clock (p 36)
  31. Hawaii Lawmakers Propose Transparency from Prosecutors (p 37)
  32. New Fingerprint Test Can Distinguish Whether Person Ingested Cocaine or Only Touched It (p 37)
  33. Wyoming Supreme Court Finds IAC Where Counsel Failed to Challenge Prolonging of Traffic Stop After Citation Completed (p 38)
  34. North Carolina Supreme Court Announces Defendant Can Forfeit Right to Counsel by Egregious Misconduct; Trial Court May Forgo Compliance with N.C.G.S. § 15A-1242 (p 38)
  35. Report: LAPD Engaged in Racial Profiling in Traffic Stops (p 39)
  36. Fingerprint Analysis: High Stakes, Low Qualifications (p 40)
  37. California Supreme Court: Defendant Doesn’t Forfeit Claim for Failing to Object to Expert’s Testimonial Hearsay at Trial That Occurred Before Sanchez Was Decided (p 40)
  38. Big Brother Is ... Tracking You (p 41)
  39. Georgia Supreme Court Reverses Dismissal of Second State Habeas Petition (p 42)
  40. DNA Contamination Threatened Conviction of Innocent Man (p 42)
  41. Sealed Records Open for View (p 43)
  42. Citizens in California Can No Longer be Prosecuted for Refusing to Risk Their Lives Assisting Police (p 43)
  43. News Websites Rethink Using Mugshots as Click-Bait (p 44)
  44. Advanced DNA Technology Helps Free Innocent Georgia Man After Nearly 18 Years in Prison (p 44)
  45. In the Criminal Justice System, Big Brother Gets Bigger Every Day (p 45)
  46. City of Grand Rapids to Pay Marine $190,000 After He Was Unlawfully Detained as ‘Illegal Foreign National’ (p 45)
  47. California’s Killer Cops (p 46)
  48. ‘Constitutional Crisis’ Still Exists Despite California Supreme Court Ruling on Opening Access to Law Enforcement Brady Lists (p 46)
  49. Complexity and Lack of Standardization Makes Crime Statistics Less Useful (p 47)
  50. Chicago’s ‘Despicable’ Red-Light Camera System Exposed (p 47)
  51. New York Police Department Plays Loose with Freedom of Information Act Laws (p 48)
  52. How to Clear Your Record of Marijuana Charges in Illinois (p 48)
  53. Could a Second Chance be the Answer? (p 49)
  54. Wrongfully Convicted NY Man Freed After 24 Years (p 49)
  55. News in Brief (p 50)
  56. Chicago Police Department Ordered to Release 49 Years of Misconduct Files (p None)

Changing Perception, Changing The Law

What Mass. lawmakers can learn from the battle to end death by incarceration across the country

by Jean Trounstine, DigBoston, March 3, 2020

With 2.3 million people behind bars, the United States is the world’s largest jailer. Yet after decades of holding this dubious honor, many Americans have begun to question what Fordham law professor John Plaff calls “this massive experiment in punitive social control.” Decarceration is being discussed in states across the country.

In the debate over decarceration, advocates have realized that it is not enough to merely push for “low-level nonviolent drug offenders” to be let out. Decarceration defies such “easy fixes,” Plaff said. Rather, in order to reduce our prison population, we must change how we respond to violent crimes. As a recent article in Slate argued, “replacing the death penalty with death in prison is not true progress.”

A growing movement is calling for an end to harsh sentencing, and in particular, an end to “death by incarceration.”  Sometimes called a push to “Drop LWOP” or determination to “bring them home,” in recent years, education campaigns have taken hold to end what many call “perpetual punishment.” From Vermont to California, activists are finding ...

California Supreme Court Finds IAC, Vacates Conviction in LAPD Officer’s Murder Case (Again) – 36 Years Later

The Supreme Court of California granted habeas corpus relief, vacating a conviction and death sentence in the 1983 murder of Los Angeles Police Officer Paul Verna, after finding ineffective assistance of counsel (“IAC”) once again, over three decades later.

Kenneth Gay was convicted of first-degree murder and was sentenced to die for his part in the shooting death of Verna. The crime happened in 1983, when Verna stopped a stolen vehicle driven by Pamela Cummings. Gay and Pamela’s husband, Raynard Cummings, were also in the vehicle, and they had just committed a string of robberies. When Verna stepped up to ask the two men for their identification, one of the men shot the officer, then got out and kept shooting until Verna was dead.

The question at trial was who did the shooting. There were witnesses. Lots of them. But none was reliable. The witnesses with the best vantage point were just kids, ages 11 to 14. Their stories varied: some said a light-skinned black man shot Verna, and some said it was a taller dark-skinned black man. The adults’ stories were even less reliable.

The prosecutor’s star witness was Pamela, who was charged in the murders ...

Ninth Circuit Opens Door for Savings Clause Relief, Recognizes ‘Actual Innocence’ for Mandatory Career Offender Sentences

by Dale Chappell

Finally answering a question that had been left open in the Circuit, the U.S. Court of Appeals for the Ninth Circuit held on February 24, 2020, that a person may be “actually innocent” of an erroneous mandatory career offender sentence, opening the door for relief under the savings clause.

In yet another case expanding the reach of the so-called savings clause, Michael Allen brought a challenge to his mandatory career offender sentence in the U.S. District Court for the District of Oregon, arguing that he was “actually innocent” of the sentence imposed on him over 20 years ago. Allen pleaded guilty in 1997 to federal drug and firearm charges and was sentenced to just short of 27 years, the minimum the court could have imposed under the then-mandatory U.S. Sentencing Guidelines.

Allen did challenge his sentence under 28 U.S.C. § 2255 in 2003, but that was denied. Out of options when the law changed much later on, Allen turned to the “escape hatch” of § 2255, as the Ninth Circuit calls it, filing a habeas corpus petition in the district court where he was being held in prison, and not where he was sentenced, as the savings ...

Seventh Circuit: Trial Judge Violated 5th Amendment by Modifying Instructions to Allow Jury to Convict on Offenses Not Charged in Indictment

The U.S. Court of Appeals for the Seventh Circuit held that a district court judge violated Ionel Muresanu’s Fifth Amendment right to be tried only on charges brought by indictment when the judge modified the jury instructions to permit conviction on offenses not charged in the indictment.

Muresanu was charged with one count of possessing 15 or more counterfeit access devices in violation of 18 U.S.C. § 1029(a)(3) for his role in making and using counterfeited ATM cards to withdraw money from victims’ accounts. He was also charged with three counts of aggravated identity theft in violation of 18 U.S.C. § 1028(A)(a)(1). But the indictment charging those offenses alleged Muresanu “did knowingly attempt to transfer, possess, and use, without lawful authority, a means of identification ... knowing that said means of identification belonged to another person.”

After the Government presented its case at trial, Muresanu’s counsel moved for judgment of acquittal on the identity theft offenses, arguing that since attempted identity theft as charged in the indictment was not a federal crime, then no rational jury could return a verdict of guilty on those counts. The trial court denied the motion on the grounds that a defect ...

Attacking the Guilty Plea: The Ineffective Assistance of Counsel Standard

More than 95 percent of state and federal prisoners plead guilty, and most of them do so on the advice of their lawyer. A successful attack on a guilty plea would then depend on showing that counsel’s bad advice to plead guilty rendered the plea not “knowing and voluntary.”

We covered the knowing and voluntary nature of a guilty plea in my last column in this series on attacking the guilty plea (see March 2020 CLN, p.18). In this column, we will go over the ineffective assistance of counsel (“IAC”) standard in the guilty plea context.

 

A.  The Negotiation of a Guilty Plea of a ‘Critical Phase’ of a Criminal Case

Criminal defendants are expected to rely on their lawyer’s advice in deciding to plead guilty. And the U.S. Supreme Court has recognized as much. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court reaffirmed its longstanding position on the issue and held that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”

The Court’s statement was hardly a surprise. For over 70 years, the Court has said lawyers ...

Suspending the Constitution: Police State Uses Crises to Expand Its Lockdown Powers

By John W. Whitehead, The Rutherford Institute, March 24, 2020

 “That was when they suspended the Constitution. They said it would be temporary. There wasn’t even any rioting in the streets. People stayed home at night, watching television, looking for some direction. There wasn’t even an enemy you could put your finger on.” — Margaret Atwood, The Handmaid’s Tale

 You can always count on the government to take advantage of a crisis, legitimate or manufactured.

This coronavirus pandemic is no exception.

Not only are the federal and state governments unraveling the constitutional fabric of the nation with lockdown mandates that are sending the economy into a tailspin and wreaking havoc with our liberties, but they are also rendering the citizenry fully dependent on the government for financial handouts, medical intervention, protection and sustenance.

Unless we find some way to rein in the government’s power grabs, the fall-out will be epic.

Everything I have warned about for years—government overreach, invasive surveillance, martial law, abuse of powers, militarized police, weaponized technology used to track and control the citizenry, and so on—has coalesced into this present moment.

The government’s shameless exploitation of past national emergencies for its own nefarious purposes ...

SCOTUS: ‘Serious Drug Offense’ Under ACCA Is Self-Defining, Match with Equivalent Federal Offense Not Required

The Supreme Court of the United States held on February 26, 2020, that just as the elements clause of the Armed Career Criminal Act (“ACCA”) statute provides the criteria defining what prior offenses qualify as “violent felonies,” so too do the criteria defining what prior offenses qualify as “serious drug offenses,” and therefore there was no need to match the prior drug offense to an equivalent federal offense for it to suffice.

Eddie Shular pleaded guilty in the U.S. District Court for the Northern District of Florida to possession with intent to distribute crack cocaine and possessing a firearm as a convicted felon. He was sentenced to 15 years in federal prison without parole, the minimum sentence the court could have imposed under the ACCA. But Shular did not come to court with a clean background.

In 2012, Shular pleaded guilty to six counts of sales or intent to sell cocaine in Florida, in violation of Fla. Stat. § 893.13(1)(a). Those six convictions, the district court determined, all qualified Shular for the ACCA penalty, which mandates a 15-year minimum sentence for any defendant having had three prior convictions for “violent felonies” and/or “serious drug offenses.”

Shular appealed, ...

Kansas Supreme Court Holds Threat of Violence Statute Violates First Amendment to Extent it Criminalizes ‘Reckless’ Conduct

The Supreme Court of Kansas held on October 25, 2019, that the statute criminalizing speech determined to be a threat of violence is unconstitutional, at least as far as it prohibits “reckless disregard” for others.

When Timothy Boettger was angry about the police refusing to investigate the shooting death of his sister’s dog, he vented his anger in words to a friend, criticizing the cops. He told his friend that “he had some friends up in the Paseo area in Kansas City that don’t mess around, and that [his friend] was going to end up finding [his] dad in a ditch.” His friend’s dad was a Douglas County Sheriff’s deputy.

When this friend reported what Boettger said to the police (and his dad), Boettger was charged with one count of making a criminal threat under K.S.A. 2018 Supp. 21-5415(a)(1). Boettger took his case to a jury, and he was found guilty. He appealed and lost. Then the Kansas Supreme Court granted his petition for review and reversed.

Under § 21-5415(a)(1), a “criminal threat” includes a threat to “[1] commit violence communicated with intent to place another in fear ... or [2] in reckless disregard of the risk ...

SCOTUS: Advocating for Shorter Sentence Sufficient to Preserve Claim that Sentence Imposed Greater Than Necessary to Comply With 18 U.S.C. § 3553(a)

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) ruled that when a defendant argues before the trial court for a sentence shorter than that sought by the Government the defendant has preserved for appeal purposes his claim that the longer sentence ultimately imposed was greater than necessary to comply with the statutory purposes of 18 U.S.C. § 3553(a).

Gonzalo Holguin-Hernandez was convicted of drug-trafficking and sentenced to 60 months in prison and five years of supervised release.

At the time of this conviction, he was serving a period of supervised release from an earlier conviction. The Government requested the trial court to find that Holguin had violated the conditions of the earlier supervised release and impose an additional consecutive term of 12 to 18 months.

Holguin’s counsel argued that there “would be no reason under [18 U.S.C. §] 3553 that an additional consecutive sentence would get [Holguin’s] attention any better than” the 60 months in prison the court had already imposed for the trafficking offense. Counsel urged the court to impose “no additional time or certainly less than” 12 to 18 months. The trial court imposed a consecutive 12-month sentence. Holguin appealed, arguing that the 12-month sentence ...

New York Court of Appeals Orders Resentencing Because Trial Court Relied on Testimony from Improperly Unsealed Record

The New York Court of Appeals ordered that the defendant (not identified by name) be resentenced because the trial court had imposed an enhanced sentence based on testimony from the improperly unsealed record of a trial on another criminal charge that had resulted in an acquittal.

Defendant pleaded guilty to fourth-degree criminal possession of a controlled substance in exchange for a four-year prison term to be followed by three years of supervision. The trial court adjourned sentencing and conditioned the promised sentence on defendant “stay[ing] out of trouble.” But before the sentence was imposed, defendant was tried for a crime allegedly committed after he had entered his guilty plea. A jury acquitted defendant of the new charge, and the record was sealed in accordance with CPL 160.50. The prosecutor then moved to have the record unsealed, arguing to the court that had he accepted the guilty plea that the People would be requesting an enhanced sentence on the criminal possession conviction because defendant’s testimony in the other case revealed he had violated the pre-sentence condition to “stay out of trouble.”

The trial court granted the prosecutor’s motion and, relying on defendant’s testimony from the unsealed record, determined ...

California Court of Appeal: Senate Bill 1437 Abrogates ‘Natural and Probable Consequences Doctrine’ in Attempted Murder Prosecutions and Applies Retroactively to Cases on Appeal

The Court of Appeal of California, Fifth Appellate District, held that Senate Bill 1437 (“SB 1437”) abrogates the “natural and probable consequences doctrine” in attempted murder prosecutions, and this holding applies retroactively to cases on appeal.

After being physically threatened by four men at a local park, Martin Sanchez left and later returned with a friend who was armed with a shotgun. They located the four men who had threatened Sanchez. The friend fired the shotgun at one of the men. As the man ran away, the friend gave chase and fired again. The man was shot in the face and the back.

Sanchez was later tried by a jury on charges that included attempted murder. The prosecutor argued two legal theories before the jury to prove attempted murder: (1) Sanchez directly aided and abetted the shooter, alternatively (2) attempted murder was the natural and probable consequence of assault with a firearm. The jury convicted Sanchez of attempted murder but did not specify under which theory the verdict was found.

Sanchez appealed, arguing that the evidence was insufficient and that the natural and probable consequences theory violated his due process rights. The Court of Appeal requested the ...

Sixth Circuit: Cardiologist’s Right to Due Process Violated Where District Court Ordered Government to Not Disclose Third Party’s Expert Evaluation of Medical Care Provided by Him

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit ruled that cardiologist Richard E. Paulus’ Fifth Amendment right to due process was violated when the district court ordered the Government to not disclose to Paulus a third party’s expert evaluation of medical care Paulus had provided to his patients.

Paulus performed an incredible number of angiograms while employed at King’s Daughters Medical Center (“KDMC”). The Government charged Paulus with numerous crimes, including health-care fraud, based on allegations that he intentionally overstated the amount of arterial blockage shown in the angiograms, unnecessarily inserted stents into the arteries, and then billed Medicare and other insurance companies for the unnecessary procedures.

Prior to trial, the Government informed Paulus that KDMC’s experts had flagged 75 of his procedures as “unnecessary.”

But at trial, the Government called three of its own expert witnesses who had reviewed Paulus’ work: (1) Dr. Ragosta, who said Paulus overstated the amount of blockage in 62 of the 250 to 300 cases he reviewed; (2) Dr. Morrison, who said more than half of the 11 procedures he reviewed were unnecessary; and (3) Dr. Moliterno, who asserted that all of the stent procedures he reviewed were unnecessary.

The ...

En Banc Ninth Circuit Provides Guidance on When Amended Habeas Petition ‘Relates Back’ to Original Claims to Avoid Dismissal as Untimely

Addressing what can often be a confusing issue for many pro se habeas petitioners, the en banc U.S. Court of Appeals for the Ninth Circuit held on February 24, 2020, that attaching a court order to a habeas application to support the claims is sufficient to allow a later amended petition to “relate back” to the original claims to avoid dismissal as untimely filed new claims.

The issue came before the Court after Ronald Ross filed a pro se federal habeas petition in the U.S. District Court for the District of Nevada raising eight claims for relief. In support of his claims, Ross attached a state court opinion that detailed the factual basis for the claims, which were the same ones he had raised in state court. Ross also moved for appointment of counsel, which was granted, and counsel filed a “First Amended Petition” adopting Ross’ eight claims, plus added three more.

Was Ross’ Amended Petition’s Claims Timely Filed?

The overarching question before the Ninth Circuit was whether Ross’ three new claims in the amended petition that counsel filed were time-barred. Ross had until October 27, 2014, to file his federal habeas petition, and he filed it ...

First Circuit: Home Search Affidavit Failed to Establish Nexus of Crime and Evidence

The U.S. Court of Appeals for the First Circuit affirmed the suppression of evidence seized from a suspected drug dealer’s home as fruit of the poisonous tree.

Jamal Roman was alleged in a search warrant application submitted by DEA Special Agent Scott Smith to be “a known cocaine trafficker” who “oversaw distribution of narcotics” for Javier Gonzalez. That suspicion was the result of the cooperation of a confidential informant (“CI”) who in January 2014 was caught with three kilograms of cocaine. The CI subsequently agreed to cooperate with law enforcement, who then initiated surveillance of Roman and Gonzalez.

Two months later, Smith drafted an affidavit to support a search warrant application of seven locations. The search warrants were granted on March 21, 2014, and the searches conducted four days later. Roman was indicted on March 24, 2016, by a grand jury on one count of conspiracy to distribute cocaine and heroin and a count of distribution and possession of cocaine.

He moved to suppress the fruits of the search of his person, residence, and business. The district court found the affidavit supporting the searches “contained material misrepresentations and omissions made with reckless disregard for the truth and ...

First Circuit: Securing a Weapon Not Used in Offense Is Not Exigent Circumstance Permitting Warrantless Entry and Search of Suspect’s Home

The U.S. Court of Appeals for the First Circuit reversed a district court’s order denying a defendant’s motion to suppress on the basis that exigent circumstances did not exist solely because officers wanted to secure the defendant’s service weapon, absent the weapon’s proximate use to the crime or arrest.

Officer Murillo-Rivera (“Murillo”) of the Domestic Violence Division for the Ponce Region of Puerto Rico received a complaint in which the victim claimed Gabriel Rodríguez-Pacheco (“Rodríguez”), an officer in the Puerto Rico Police Department, sent her text messages threatening to publish explicit photos and videos of her if she did not rekindle their relationship.

Murillo was directed to arrest Rodríguez immediately and to secure his service weapon pursuant to General Order 2006-4 because, he testified, “according to the procedure ... anyone alleged to have committed domestic violence must immediately be placed under arrest.”

Murillo and an unspecific number of other officers located the home Rodríguez shared with several family members, and Rodríguez immediately came outside. Murillo notified Rodríguez about the complaint, his impending arrest, and the need to seize his service weapon. Murillo did not handcuff Rodríguez because he “was very cooperative and his family looked like really ...

Massachusetts Supreme Judicial Court Reverses Murder Conviction Due to Insufficient Evidence

The Supreme Judicial Court of Massachusetts reversed Jean Carlos Lopez’s murder conviction because the evidence was insufficient to establish beyond a reasonable doubt that Lopez knowingly participated in the killing with the requisite intent.

When Lopez and Erving Cruz arrived at a convenience store around 11:30 p.m., Lopez’s brother Etnid was chasing Tigan Hollingsworth in the parking lot with a knife. Cruz shouted to Etnid, “Is that him? Is that him? Get him. Get him.” Cruz joined the chase.

Surveillance video showed Etnid was wearing a white T-shirt, Cruz was wearing a black tank top and black pants, Hollingsworth was wearing a black jacket with gold lettering, and Lopez wore a light-blue sweatshirt. Also present in the parking lot were Jared Brown-Garnham wearing dark clothes, Kayla Lawrence (Etnid’s girlfriend), and Michelle Torrey. Hollingsworth ran out of the parking lot and down the street. Matthew D’Alessandro and Brittany Machado observed Hollingsworth being chased by two men — one wearing a white T-shirt (presumably Etnid) and the other had on a black tank top and black pants (presumably Cruz).

Hollingsworth ran up a driveway and scaled a chain-link fence and was in a nearby backyard when the two men ...

Second Circuit Holds Denial to Proceed Under Pseudonym by Magistrate Judge Is Immediately Appealable

n a question of first impression that implicated the Court’s jurisdiction, the U.S. Court of Appeals for the Second Circuit held on February 6, 2020, that a magistrate judge’s order denying a prisoner’s request to file a motion pursuant to 28 U.S.C. § 2255 under a pseudonym or to seal the filings in order to protect his confidentiality was an immediately appealable order under the “collateral order doctrine.”

The question landed before the Court after John Pilcher filed a letter with his § 2255 motion asking to file under a pseudonym and to file the motion under seal to protect his identity. The magistrate judge appointed to hear his motion and make a recommendation to the district judge denied outright Pilcher’s request in an order, finding that his criminal conviction was already public knowledge and that his grounds for sealing the motion were not enough to overcome the right of the public to open records under the First Amendment to the Constitution. Pilcher appealed.

The first thing the Second Circuit addressed was whether it has jurisdiction to hear Pilcher’s appeal from a non-final order of the district court denying his motion to proceed anonymously. Typically, the ...

Fifth Circuit Settles In-Circuit Confusion, Holds Implicit Extension of Time to File State Appeal Tolls AEDPA Clock to File Federal Habeas Petition

he U.S. Court of Appeals for the Fifth Circuit held on February 3, 2020, that when a Louisiana state court grants an extension of time, even implicitly through other actions, a state post-conviction action remains “pending” to toll the one-year clock under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The Court’s decision settled conflicting opinions among the federal district courts in Louisiana on the issue.

When Colby Leonard’s post-conviction relief motion was denied by a Louisiana state court in 2013, he applied to the state appellate court for a supervisory writ to appeal the denial. However, Leonard failed to properly file the application for the writ, so the appellate court dismissed it. But the court gave him a break: “In the event Leonard elects to file a new application with this Court, the application must be filed on or before October 22, 2013.” Leonard then filed a proper application in the appellate court before that date.

When Leonard’s writ was denied on the merits and the Louisiana Supreme Court denied review, he filed a federal habeas corpus petition in the U.S. District Court for the Middle District of Louisiana less than a month later. This ...

Pennsylvania Prosecutors Cash in on Low-Level Drug Crimes

Examples include Rachel Rollins of Boston, Kim Ogg of Houston, Joe Gonzales of San Antonio, and Dan Satterberg of Seattle.

Bucking this trend in a major way is Democratic district attorney Stephen Zappala Jr. of Pittsburgh, Pennsylvania. The Appeal pored over 30,000 criminal docket entries for Allegheny County from 2017 and discovered some extremely disturbing numbers. For that year alone, over 1,700 low-level, misdemeanor drug cases were referred to his office for prosecution. Even more disturbing, Zeppala actually prosecuted over 90 percent of those referred cases. The convictees were found to have accrued over $2 million in court-imposed debt resulting from their convictions.

As is usually the case, the overwhelming majority of those arrested and prosecuted for those low level misdemeanor drug cases were people of color and the city’s poorest citizens.

Northwestern University’s law and health sciences professor Leo Beletsky is less than enamored by Zeppala’s choice to waste law enforcement monies better ...

Former Florida Deputy Jailed for Fabricating Drug Evidence

During his tenure as a deputy from May 2017 to January 2018, Steven O’Leary made 80 drug-related arrests. An arrest warrant says O’Leary arrested 26 people accused of having drugs on them who either did not have illegal drugs or who did not have the actual amount or type of drugs he said they did.

Matthew Crull was arrested by O’Leary on December 5, 2018. Crull was asleep in a used van he had recently purchased when O’Leary approached him and made a search. During that search, O’Leary pulled a plastic bag cinched with a wire tie from the inside of the driver’s door. O’Leary field-tested the substance and determined it was 92 grams of heroin.

That landed Crull in jail on drug trafficking charges, which carried a possible 25-year prison sentence. A lab test determined the substance was Tide detergent. Officials soon determined that O’Leary made numerous arrests based on field tests he said were drugs but were later determined to be legal substances. ...

Prosecutors Overrepresented Among Federal Judges

Imagine your alma mater was about to play its rival in the season’s biggest game. Imagine also that, the day before the game, it was revealed that the majority of the referees were alumni of the other school. Even though these individuals were sworn by their profession to be impartial on the field, it would be hard not to believe that their personal experiences might shade their calls, thus putting your side at a disadvantage. Such a scenario would rightly be considered unfair and objectionable, yet it is precisely the situation that many people face in federal court.

A recent study by the Cato Institute found that the odds are almost 50 percent that those filing civil rights or criminal cases in federal court will come before judges whose previous career experience included acting as courtroom advocates on behalf of the government. The chances of landing before judges who opposed the government were a slim six percent.

It has long been a truism in the legal field that the easiest route to obtaining a position as a federal judge was to start by serving as a prosecutor. The Cato study, however, was the first to generate actual ...

‘Travel Papers’ and the Pandemic Patriot Act 2.0

Did you ever think we’d reach the point in the United States where you had to have papers to freely travel from one place to another? It appears we’re at the point.

The MTA issued “travel papers” to their workers

On March 17th, a few days before New York issued a shelter in place order, the Metropolitan Transportation Authority issued “travel papers” to their employees to prepare for a potential coronavirus curfew. The NY Daily News reports:

If non-emergency travel is restricted, workers can show law enforcement officials the letter if they’re stopped on the way to work.

“This letter along with current New York City Transit identification identifies this individual as an essential employee who is required to travel during the curfew imposed due to the Coronavirus emergency,” states the letter, which is signed by the Metropolitan Transportation Authority’s Police Department’s acting chief Joseph McGrann. “Please give this individual due consideration during this crisis.”

MTA spokeswoman Abbey Collins said the letter was distributed on Monday to a “limited number of NYCT bus employees living in New Jersey” because the state’s Gov. Murphy suggested imposing a statewide curfew between 8 ...

FBI ‘Assessing’ Black Americans

Unlike sanctioned investigations, assessments do not require any evidence of wrongdoing or threat to be implemented, nor are they subject to other limitations. Agents are allowed to mislead interviewees and do not have to identify themselves as federal officials. They also can select their targets based on religion, ethnicity, and other factors normally protected by the First Amendment as long as these are not the only criteria.

Numerous Freedom of Information requests submitted by civil rights activists have exposed hundreds of FBI documents related to assessing African Americans, yet these represent only a small fraction of the total. Despite calls for transparency from lawmakers, the pages that had been released were heavily redacted. Often entire pages were blacked out, and any information that might reveal the subject’s identity or location had been removed.

What could be ascertained from the most recent ...

California Supreme Court: Refusing to Testify Insufficient to Constitute Accessory After the Fact

The Supreme Court of California held that a defendant with alleged knowledge of a crime cannot be prosecuted under Penal Code § 32 as an accessory after the fact to the crime for refusing to testify when presented with a valid subpoena.

In 2006, Starletta Partee allowed her brother to borrow her rental car, which she learned later was used in the commission of a murder. When she tried to report the car as stolen, she was questioned by a homicide detective who surreptitiously recorded the interview. She told the detective what she knew about her brother’s conduct on the condition that it was off the record, because she had previously been harassed and intimidated after testifying when her boyfriend had been murdered.

Shortly thereafter, her brother, cousin, and their two friends were charged each with one count of murder. Partee could not be located in time for the 2008 trial, so the charges were dismissed.

In April 2015, law enforcement located Partee and took her into custody as a material witness. The charges against the four were reinstated, and Partee was granted use immunity for testifying, which meant she could not rely on the Fifth Amendment ...

Seventh Circuit: Unsupported CI Statements Insufficient to Justify Higher Drug Quantity for Sentencing

The U.S. Court of Appeals for the Seventh Circuit held on January 28, 2020, that the unsupported statements by confidential informants (“CI”) about drug amounts and transactions outside the direct criminal charges were not enough to support a sentence based on a drug total 32 times higher than the actual drugs seized.

There was no dispute in this case that police seized 143 kg of marijuana and two firearms from Joel Helding’s car and apartment. They also found methamphetamine residue on some digital scales. What was in dispute was how the sentencing judge, William Conley of the U.S. District Court for the Western District of Wisconsin, took the word of CIs which the Presentence Report (“PSR”) used to increase the total drug amount for sentencing to impose a higher sentence.

Helding was charged with possessing with intent to distribute more than 100 kg of marijuana, under 21 U.S.C. § 841(a), and possessing a firearm in furtherance of a drug trafficking crime, under 18 U.S.C. § 924(c). The charges were brought after a CI told Wisconsin police that Helding was transporting drugs into the state. Helding pleaded guilty to both counts, which exposed him to a minimum of ...

Ninth Circuit: Proposition 47 Creates New, Intervening Judgment to Allow Another Federal Habeas Petition Attacking Entire Case

The U.S. Court of Appeals for the Ninth Circuit held on January 30, 2020, that the “reclassification” of a prior conviction as a misdemeanor under Proposition 47 created a new judgment in the case that allowed a new federal habeas corpus petition attacking the entire case, which would not be a “second or successive” petition.

Nicolas Morales long ago filed a federal habeas corpus petition under 28 U.S.C. § 2254 challenging his 2009 California attempted robbery conviction and 35-year three-strikes sentence.

That petition was denied by the district court as untimely filed. Years later, the state court granted Morales’ motion to “reclassify” his grand and petty theft convictions in the same case as misdemeanors but left his robbery conviction and sentence intact.

Morales then filed another federal habeas petition challenging his robbery conviction, raising the same claims as his previous petition that was dismissed. The district court this time dismissed Morales’ petition as an unauthorized “second or successive” petition, finding that Proposition 47 did not create a new judgment in the state case and Morales was therefore trying to challenge the same judgment as before, which is prohibited under the Antiterrorism and Death Penalty Act without authorization ...

Seventh Circuit Vacates Sentence for Failure to Explain Extreme Departure of Guidelines Range

The U.S. Court of Appeals for the Seventh Circuit vacated a defendant’s sentence because the district court failed to explain its reasoning for a 160 percent upward departure on remand where the original sentence involved only a 10 percent upward departure.

Jesse J. Ballard pleaded guilty to being a felon in possession of a firearm in 2018, his first federal offense. However, Ballard had accrued more than 30 state felony convictions between 1985 and 2017, which placed him in Criminal History Category VI of the United States Sentencing Guidelines (U.S.S.G.).

Under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), he was enhanced further, resulting in a Guidelines range of 180 to 210 months. The court sentenced him to 232 months, a 10 percent upward departure on the grounds that the Guidelines did not adequately account for his extensive criminal history.

On appeal, Ballard prevailed on the argument that he had been improperly enhanced under the ACCA. The Government conceded it had erred in counting his two Illinois attempted burglary convictions. His sentence was vacated and remanded for resentencing.

The district court calculated an amended Guidelines range of 33 to 41 months. However, without articulating any ...

Coronavirus: Will Courts Continue To Operate, Preserving the Rule of Law?

The coronavirus outbreak is affecting broad swaths of American life, including all levels of government. On March 16 the U.S. Supreme Court took the unusual step of indefinitely postponing oral arguments scheduled for at least the next two weeks.

The court held oral arguments in 2012, when Hurricane Sandy had closed the rest of official Washington. It often continues to do business when other government agencies shut down due to snowstorms. In this latest move, the court’s statement said the justices were taking this action “in keeping with public health precautions recommended in response to COVID-19 … The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.”

The court said it would continue “to be open for official business,” and, as if caught up in the logic of legal argument, noted that “postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in ...

Repeat Offenders May Be the Result of Different Brain Composition

With consideration for the age-old adage, “nurture versus nature,” a recent study suggests that the single common characteristic shared by repeat offenders may be isolated to the structure and composition of the brain itself, suggesting “nature” may trump “nurture” as the key to identifying a future career criminal.

According to the Ministry of Justice in England and Wales, a 2006 study showed that although criminal behavior may arise in adolescence, most who may have stolen a candy bar or picked a fight on the schoolyard go on to become well-balanced, law-abiding adults. The study suggested that only about 10% continue along a path of criminality, but it is unclear if this non-conformity to social rules could be the product of a broken home, a deprived lifestyle, misguided role models, or a biological anomaly that presents itself as a striking difference in the makeup of the brain.

“These findings,” suggests Professor Essi Viding, “underscore prior research that really highlights that there are different types of young offenders—they should not all be treated the same.” Terrie Moffit, a professor at Duke University, and part of the research team behind the study, upon evaluating biological differences in brain structure, ...

Washington Supreme Court Announces PRP Petition ‘Final’ Upon Issuance of Certificate of Finality to Allow Tolling of Federal Habeas Clock

by Dale Chappell

Answering a question certified to the Court by the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court of Washington held on February 27, 2020, that a personal restraint petition (“PRP”) is not “final” until a certificate of finality (“COF”) is issued. The question was posed by the Ninth Circuit because Washington law was unclear on when the one-year clock restarts when filing a federal habeas corpus petition after the denial of a PRP petition.

The case came before the Court in a not so unusual fashion. In 2011, Phonsavanh Phongmanivan was convicted in state court and sentenced to just over 25 years in prison. After his direct appeal was denied, he filed a timely PRP petition, which also was denied. Phongmanivan then took his PRP appeal to the Supreme Court, and on December 3, 2015, the state’s highest court denied discretionary review. On February 10, 2016, the Court denied reconsideration, and thereafter, the court of appeals issued a COF.

Just eight days after the COF, Phongmanivan filed a pro se habeas corpus petition in the federal district court, on April 9. However, the court dismissed his petition as untimely, holding that his one-year window ...

Hawaii Lawmakers Propose Transparency from Prosecutors

Prosecutors are the “most powerful actors in the criminal justice system” proclaims Hawaii House Bill 2749. That bill would follow the lead of Florida, Colorado, and Arizona in increasing transparency into court proceedings.

A Texas A&M Law Review article highlighted the need to increase transparency in plea bargaining. (See July 2019 CLN, p.41) This bill does that and more. It would require a prosecutor’s office to collect and publish data about a defendant’s race, gender, disability status, where they were arrested, whether diversion was offered, bail or bond information, pleas offered, and substance abuse screening.

In all, the bill requires 11 data points to be collected and publicized online by a newly created criminal justice research institute. It also requires the governor to establish a prosecutorial transparency advisory board.

“The intent of the bill is generally to bring more transparency to the process in prosecutor’s offices to make sure the public can have faith and confidence that the right people are being prosecuted,” said House Judiciary Committee Chair Chris Lee.

The bill is not popular with prosecutors. Maui County Prosecutor Son Guzman said it was in “strong opposition” to it. “This bill creates an unfunded ...

New Fingerprint Test Can Distinguish Whether Person Ingested Cocaine or Only Touched It

Forensic researchers from the University of Surrey in southeast England have revealed they can examine fingerprints to determine whether a person has ingested cocaine or merely touched cocaine. In 2017, Melanie Bailey and her team utilized a new test that used high-resolution mass spectrometry (“HRMS”) to examine fingerprints taken from persons who had testified to taking cocaine within the previous 24 hours. These subjects were then asked to wash their hands and give another set of prints. This same procedure was followed to examine fingerprints taken from another group of people who had only touched street cocaine. Those who had ingested cocaine produced a molecule known as benzoylecgonine that was not detected in the fingerprints taken from those who had only touched the drug.

Because 1-in-10 non-drug users are exposed to cocaine through environmental factors such as handling money, the ability to determine who has ingested versus who has merely touched cocaine is critical. This is especially true with the “war on drugs” and the legal ramifications of positive field-tests.

Bailey said, “At the roadside it would be possible to carry out a screening test, but you would still need to collect a sample to take back ...

Wyoming Supreme Court Finds IAC Where Counsel Failed to Challenge Prolonging of Traffic Stop After Citation Completed

The Supreme Court of Wyoming held that a defendant’s counsel was ineffective for failing to challenge the extension of the traffic stop that eventually uncovered evidence resulting in his conviction on multiple drug-related charges.

On July 10, 2017, Deputy Kyle Borgialli received notification from DCI agents regarding the description of two vehicles that agents believed had been involved in a drug transaction.

Borgialli located the vehicles and pulled one over on the premise that he had witnessed the driver commit a traffic violation, since the DCI notice did not constitute reasonable suspicion to initiate an investigatory stop.

During the stop, Borgialli ran the documents belonging to James Leonard Mills and verified that he had a valid license and insurance.

Borgialli then asked Mills to exit the vehicle so he could “explain” the traffic citation. Mills told the deputy to “explain it right here” and refused to exit the vehicle.

Officer Steven Dillard arrived on the scene with a drug-sniffing dog when Mills was refusing to exit the vehicle. Several officers were required to forcibly remove Mills from his vehicle. A pat search found methamphetamine and cocaine in his pockets. The drug dog alerted on the vehicle, and ...

North Carolina Supreme Court Announces Defendant Can Forfeit Right to Counsel by Egregious Misconduct; Trial Court May Forgo Compliance with N.C.G.S. § 15A-1242

In a case of first impression in the Supreme Court of North Carolina, the Court announced that when a defendant forfeits the right to counsel, a trial court may forgo compliance with N.C.G.S. §15A-1242 (required court inquiry before allowing defendant to proceed without assistance of counsel).

Jeffery Martaez Simpkins was charged with various offenses related to his failure to maintain a valid driver’s license. After being tried and convicted in Stanly County District Court, he appealed to the Stanly County Superior Court where he was tried de novo.

Because Simpkins did not have counsel, the superior court examined him to determine whether he waived counsel. During this time, the superior court warned Simpkins that he could not ask the court for legal advice and that he could not ask the court questions.

When informed he could have counsel assigned to him if he qualified, Simpkins responded that he “would like counsel that’s not paid for by the State of North Carolina.” The court understood this to mean Simpkins desired to hire private counsel to which the State objected on the grounds of delay because Simpkins had known of the impending trial for more than a year ...

Report: LAPD Engaged in Racial Profiling in Traffic Stops

The Los Angeles Times used traffic stop data released by the Los Angeles Police Department (“LAPD”) under a new California law to calculate racial breakdowns of stops. The newspaper found that blacks and Latinos had a much higher chance of being pulled over than whites, although more drugs and weapons have been found on white motorists. The racial disparity has led to Promoting Unity Safety and Health in Los Angeles (“PUSH LA”) to call for a moratorium on pretextual stops and financial compensation for those unlawfully stopped and searched.

The population of LA is roughly 47 percent Latino, 27 percent white, 11 percent Asian, and 9 percent black. The Times analyzed 385,000 traffic stops between July 2018 and April 2019 and found that blacks represented 27 percent of drivers pulled over, Asians 4 percent, Latinos 47 percent, and whites 18 percent.

Equipment violations accounted for 20 percent of stops for blacks and Latinos but only 11 percent for whites. Activists are concerned that these kind of stops are conducted as an excuse for police to search and harass people of color.

Melina Abdullah, co-founder of Black Lives Matter LA, said, “These stops lead to the deaths of ...

Fingerprint Analysis: High Stakes, Low Qualifications

Forensic science was long considered a foolproof means of analyzing evidence to determine the identity of individuals involved in a crime or their methods of committing it. If the people in the lab applied their technical expertise to a case and the results pointed toward a certain suspect, a guilty verdict was almost assured. After all, what jury would argue with the objective standards of science?

A 2009 National Academy of Sciences report cast old assumptions about the field of forensics into serious doubt. The study found that all the pattern-matching disciplines, where evidence from a crime scene is compared to a pattern connected to a suspect, are actually very subjective, meaning that experts examining the same piece of evidence can—and often do—reach conflicting conclusions. It went on to say that, except for DNA analysis, most disciplines of forensics had no solid scientific basis.

Some analyses, such as matching bite-marks and handwriting, had already been criticized for uneven results, but perhaps the biggest surprise was that friction ridge, or fingerprint, comparisons lacked objective standards as well. This particular field revolves around the common perception that no two individual’s prints are identical, but that has never been proven. ...

California Supreme Court: Defendant Doesn’t Forfeit Claim for Failing to Object to Expert’s Testimonial Hearsay at Trial That Occurred Before Sanchez Was Decided

The Supreme Court of California held that an appellate claim of a confrontation clause violation based on an expert’s testimonial hearsay is not forfeited due to defense counsel’s failure to object where the trial occurred before People v. Sanchez, 374 P.3d 320 (Cal. 2016), was decided.

Jose Luis Perez, Edgar Ivan Chavez Navarro, and Pablo Sandoval were tried together for their roles in the kidnappings and murders of two men and the attempted murder of another.

Sabas Iniguez testified to the following: A drug dealer named Max owed a debt involving methamphetamine to the three victims (who were also drug dealers). Max was a Sinaloa cartel member, and Sandoval reported to him. Chavez reported to another cartel member named Eduardo Alvarado (whom the surviving victim identified as the shooter). One of the murder victims also was a member of the cartel to whom the survivor had reported.

The prosecution’s gang expert, Jeff Moran, testified that the Sinaloa drug cartel produces large amounts of methamphetamine and transports it to the U.S. to sell. Moran opined that Iniguez, Sandoval, Chavez, Perez, and Alvarado were all members of the Sinaloa cartel and that their coordinated efforts were consistent with ...

Big Brother Is ... Tracking You

In these Orwellian times, the Detroit Police Department (“DPD”) has obtained a cell-site simulator (“CSS”). It’s a surveillance technology that locates and tracks phones by mimicking cellphone towers.

The DPD bought the technology for $622,000 and began using it in October 2017. From January 1, 2018, through October 31, 2018, the CSS was deployed at least 66 times—an average of three times every two weeks. The phone location information collected by the CSS isn’t limited to targets of police investigations but includes hundreds, even thousands, of innocent passersby.

“If you’re pinging my cellphone for my location, that’s private information,” said Michigan State Representative Peter Lucindo. “These simulators — it’s called overreach of the criminal justice system.”

The Supreme Court ruled last year that cellphone location data is private information, and law enforcement would generally need probable cause and a warrant to track someone through his or her cellphone or other mobile device. Yet some police departments, like Chicago’s, have reportedly used CSS without a warrant by misrepresenting the surveillance technology capabilities, truthout.org reports.

The Michigan State Police (“MSP”) also possesses CSS. Through public records requests, the ACLU of Michigan discovered that the MSP has secretly used the ...

Georgia Supreme Court Reverses Dismissal of Second State Habeas Petition

The Supreme Court of Georgia reversed the Walker County Superior Court’s dismissal of Joseph Samuel Watkins’ second petition for writ of habeas corpus.

Watkins was convicted in 2001 of felony murder, and his conviction was affirmed on appeal to the Georgia Supreme Court in 2003. Watkins subsequently filed a petition for habeas corpus, which was denied. The Georgia Supreme Court also denied his petition for probable cause to appeal in 2012. Then in 2017, Watkins filed a second state habeas petition. Therein, he alleged a claim of juror misconduct and a claim that the State failed to disclose exculpatory evidence, as well as allowed a witness to testify falsely about the existence of the evidence.

In support of the claimed juror misconduct, Watkins provided an affidavit from the juror that revealed the juror had conducted her own timed-drive experiment to the crime scene despite the trial court’s instructions that she not do so. The juror stated that prior to her timed-drive experiment, she and another juror were “leaning towards acquittal.” The experiment removed her reasonable doubt, and she — along with the other holdout juror — voted to convict. She further stated that in 2016 she told ...

DNA Contamination Threatened Conviction of Innocent Man

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 in legal fees.

Police responded on December 19, 2018, to a Queens, New York, break-in. DNA samples were collected off the window sill and sent to a lab for testing. The results indicated it was Harris’ DNA, and he was charged with the crime.

Harris had earlier pleaded guilty to a misdemeanor forcible touching charge of an 18-year-old woman. A Grenadian immigrant who had earned U.S. citizenship, Harris had obtained employment with Jet Blue at JFK Airport and pleading to five years’ probation on a misdemeanor allowed him to keep this job.

The Port Authority told Harris that with his pending felony charge, he could not maintain his job. He had to quit and pay $25,000 to an attorney for representation in a case that could earn him up to four years in prison. Harris continued to assert his innocence throughout the proceedings. “DNA is good in some ways,” he ...

Sealed Records Open for View

Washington state has over 5,500 sealed juvenile records that are once again accessible to law enforcement agencies across the nation after a last-minute amendment for “officer safety” was added to a 2015 bipartisan sentencing reformation bill.

Tony Calero conducted an analysis when he was a graduate student in 2013 of Washington’s record-sealing process and found that only 7.5 percent of those eligible went through the long, costly, and difficult process of having their juvenile record sealed, with young black people the least likely to do so.

So state legislators passed a law in 2014 that automatically sealed a juvenile’s record once they turned 18 unless it was contested — or the crime was one of the felony exceptions. Previous fines and court costs were to be paid before the process was initiated. The next year, legislators went one step further, passing the Youth Equality and Reintegration (“YEAR”) Act that waived all court costs and fines to help establish a fresh start.

Republican Senator Steve O’Ban added an “11th hour” amendment to the Act that would allow certain law enforcement agencies to view sealed juvenile records during traffic stops for safety.

Attorney Hillary Madsen, YEAR’s original crafter and ...

Citizens in California Can No Longer be Prosecuted for Refusing to Risk Their Lives Assisting Police

In 2014, Norma and Jim Gund were tricked by a Trinity County sheriff’s deputy into responding to a 911 call that the deputy said was “weather related.” Instead, the Gunds were confronted by a maniac who had just murdered two of their neighbors, and Norma was viciously sliced open. The Gunds sued the Trinity County Sheriff’s Office (“TCSO”) for $10 million. But the TCSO invoked the California Posse Comitatus Act of 1872 (“Act”). Under the Act it is a criminal offense — punishable by a fine up to $1,000 — for refusing to respond to a police officer’s call for assistance.

The TCSO claimed the Act made the Gunds de facto employees of the state, despite the fact they had no choice and received no paycheck. A Trinity County judge dismissed the lawsuit in favor of the TCSO’s argument that the Gunds were eligible only for worker’s compensation because they “volunteered” to perform “active law enforcement service.”

But, in September 2019, Governor Gavin Newsome signed a bill striking down the Act.

Senate Bill 192 was sponsored by Sen. Bob Hertzberg, D-Los Angeles. The California State Sheriff’s Association opposed the bill, arguing there are situations where a peace ...

News Websites Rethink Using Mugshots as Click-Bait

Once something is on the internet, it can’t be deleted, they say. Enter the jail mugshot. Proven time and again to be an effective way to ruin someone’s life. Especially when they’re innocent. And news agencies have used them to drive traffic to their websites for years, forever memorializing the worst day of someone’s life.

And that’s why some news agencies are rethinking the use of mugshots on their websites. In January, the Houston Chronicle was the latest major newspaper to stop putting mugshots on its website of those who have been arrested but not yet convicted. In an email to the Marshall Project, Managing Editor Mark Lorado said of the decision against posting mugshots on the paper’s website, “We’re better than that.”

The paper even got an unlikely supporter: “Thank you, @HoustonChron for doing the right thing,” tweeted Jason Spencer, spokesman for the Harris County Sheriff’s Office. “I’m hopeful that other media outlets and law enforcement agencies will follow your lead and rethink the practice of publicly shaming arrested people who haven’t been convicted of a crime.”

Others have raised the same concerns. “It creates this situation when you’re criminalizing folks before they’re convicted of any ...

Advanced DNA Technology Helps Free Innocent Georgia Man After Nearly 18 Years in Prison

On January 8, 2020, Kerry Robinson began the New Year and a new life as he left Georgia’s Coffee Correctional Facility a free man. He had spent nearly 18 years in prison for a brutal group rape he had nothing to do with.

As science in general and DNA scientific techniques in particular advance, so have avenues available to innocence projects across the nation to exonerate wrongfully convicted citizens. The latest scientific advance called probabilistic genotyping was championed by the Georgia and Idaho Innocence Projects to secure exoneration and release from prison for Robinson.

Sometime prior to 1993, the law-abiding teen Robinson reported Tyrone White to police for an alleged crime. On February 3, 1993, White and two teenage accomplices broke into a 42-year-old woman’s home and raped her. A sexual assault kit (“SAK”) was assembled at the hospital, and the victim gave a detailed comprehensive statement. DNA testing was performed on the fluids found in the SAK. Prominently identified was White’s and the victim’s DNA with the remaining mixture showing two more donors, but with the technology available at the time, those two were not able to be identified to a certainty.

The victim positively identified ...

In the Criminal Justice System, Big Brother Gets Bigger Every Day

by Douglas Ankney

According to a report by sciencefriday.com, one in every two American adults is in a law enforcement facial recognition network. Most adults have unwittingly consented to the release of their photos that they have uploaded to social media, including dating sites.

While it’s impossible to determine the exact number of people in a facial recognition database, the Georgetown Law Center on Privacy and Technology reported that over 117 million people are in law enforcement facial recognition networks.

In addition, the Government Accountability Office found that in a four-year period the FBI conducted over 118,000 face recognition searches on its database.

U.S. Immigration and Customs Enforcement has mined the Department of Motor Vehicles databases of states that grant driver’s licenses to undocumented immigrants. And numerous police departments scan the faces of passersby using hand-held surveillance cameras.

But the accuracy of facial recognition technology is questionable. While Chinese authorities managed to locate and arrest a man in a crowd of 60,000 at a concert using recognition technology, Amazon’s software “Rekognition” misidentified 28 members of Congress and matched them with criminal mugshots. The rate of ID mismatch is far worse for women and people of color. Facial recognition can be ...

City of Grand Rapids to Pay Marine $190,000 After He Was Unlawfully Detained as ‘Illegal Foreign National’

According to November 14, 2019, news reports from dailykos.com and nytimes.com, the city of Grand Rapids, Michigan, will pay $190,000 to former U.S. Marine Jilmar Ramos-Gomez after he was illegally detained by Immigration and Customs Enforcement (“ICE”) for three days.

Ramos, who suffers from PTSD, was arrested after he pulled a fire alarm at Spectrum Health Butterworth Hospital and then made his way to the hospital’s helicopter pad.

Footage from a body camera worn by one of Ramos’ arresting officers shows a police officer holding Ramos’ U.S. passport. In the video, one officer asks if Ramos has been identified and another answers, “His passport is down there.”

In spite of this evidence, Captain Curt Vanderkooi of the Grand Rapids Police Department sent an email to ICE, requesting the agency check Ramos’ status. Allegedly, the request was based on Ramos’ physical appearance.

ICE Deportation Officer Matthew Lopez interviewed Ramos at the Kent County Jail and later informed Vanderkooi that Ramos was a foreign national who was in the U.S. illegally and that he should be detained by ICE after his release from local authorities.

In Vanderhooi’s reply, he referred to Ramos as the “Spectrum Helicopter Pad Loco.”

Ramos ...

California’s Killer Cops

On the list of cops in California who are convicted felons, 20 former officers are shown as convicted killers.

Recent headlines told us of Joseph DeAngelo — the suspected “Golden State Killer”— charged with a dozen murders and more than 40 rapes, some of which occurred in the 1970s while he was a cop working for the Auburn Police Department near Sacramento. But also listed is Blair Christopher Hall, a former San Bernardino officer convicted of drowning his wife in their backyard hot tub to collect $800,000 in life insurance.

Placer County Sheriff’s Sergeant Paul Koviach Jr. was convicted of killing his wife, who disappeared 26 years ago, and sentenced to 27 years to life.

Los Angeles Police Department Detective Stephanie Lazarus was also convicted for killing an ex-lover’s wife 23 years ago.

Bay Area Rapid Transit police officer Johannes Mehserle claimed he meant to fire his Taser when he shot and killed 22-year-old Oscar Grant, an unarmed African-American who was lying on a station platform. A jury convicted Mehserle of involuntary manslaughter, and he was released from jail after 11 months. Santa Clara County jail deputies Jereh Lubrin, Matt Farris, and Rafael Rodriguez were convicted of ...

‘Constitutional Crisis’ Still Exists Despite California Supreme Court Ruling on Opening Access to Law Enforcement Brady Lists

The latest attempt by the California courts to “harmonize” the state’s brutally secretive police protection statutes with the U.S. Supreme Court’s ruling in Brady v. Maryland, the 1963 case holding that prosecutors must turn over favorable evidence to the defense in order to satisfy the Due Process Clause of the Constitution, is still no better even after the California Supreme Court’s recent ruling that law enforcement agencies “may” turn over their list of problem officers to prosecutors.

In Association for LA Deputy Sheriffs v. Superior Court, the Court held on August 26, 2019, that a law enforcement agency “does not violate [the Pitchess statutes protecting police officer personnel files] by sharing with prosecutors the fact that an officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in that officer’s confidential personnel file.” While the media declared this a major victory for criminal defendants, the ruling is actually anything but that.

Experts who have followed the fallout from the ruling have said that California’s laws on police privacy protection remain in conflict with the Constitution’s due process requirements and undermine the rights guaranteed to defendants by the ...

Complexity and Lack of Standardization Makes Crime Statistics Less Useful

A lack of standardization in crime statistics and the complexity of the causes of and cures for crime have made the use of crime statistics difficult.

For instance, whether using marijuana causes crime is an important question as more states consider legalizing recreational marijuana. Legalization proponents could point to a paper in the Journal of Economic Behavior and Organization that found thefts decreased by 20 percent and rapes by as much as 30 percent post-legalization in Washington state.

But, in a survey of 75 sheriffs in states that legalized recreational marijuana undertaken by The New Yorker, the 25 who responded were evenly split between not seeing any change and being certain of an increased crime rate. Thus, The New Yorker survey and the journal paper have two differing conclusions, demonstrating the difficulty in comparing crime statistics.

The most basic problem in crime statistics is defining what a crime is. Behavior that is criminal in some places is not criminal in others.

The definition of what a crime is also changes over time, making historical comparisons difficult.

Further, how does one classify misdemeanors? Is speeding a crime? Is having an overgrown lawn? That is why the paper ...

Chicago’s ‘Despicable’ Red-Light Camera System Exposed

As of October 2019, Chicago’s 300 red light cameras netted $35 million in fines, penalties, and collection fees.

According to an investigation by ABC 7, the city is setting traps for unwary drivers by reducing the length of time the traffic lights remain green and yellow while increasing the red-light time.

At 87th and Lafayette in Chatham, for example, the two directions with cameras have lights that remain green for 20 and 29 seconds, respectively. But the direction without a camera has a green light for 69 seconds.

Mark Wallace, leader of Citizens to Abolish Red Light Cameras, said, “That’s really significant and you just generate a lot more violations by having a shorter green on a red light.”

Wallace’s group tipped off ABC, which led to the investigation. The cameras at 87th and Lafayette had generated $1,041,184.38 from January through October 2019, according to city records.

“The question is why is a green light shorter where the red light camera is at the very same intersection,” said Wallace.

ABC’s investigation found that at Garfield Boulevard and Wentworth Avenue in Fuller Park, the directions with cameras have 30 seconds for green and yellow lights combined while the ...

New York Police Department Plays Loose with Freedom of Information Act Laws

The New York Police Department (“NYPD”) has a history of denying freedom of public information requests, especially when it concerns surveillance equipment and information gathering technology.

Muckrock, an online records request monitoring database, showed that of the 500 requests monitored since 2017 only half were completed.

Vox reporter Rebecca Heilweil submitted a request for public records to obtain a better idea of the artificial intelligence-based technology the NYPD was employing, specifically gun-detection software used to indicate when a brandished firearm appears in a video. Her request was twice rejected because it would “reveal non-routine techniques and procedures” as well as company trade secrets and “affect their competitive position and imminent contract awards or collective bargaining negotiations.”

Heilweil stated that she was not the only person receiving “such an opaque and frustrating response.” Most are forced to sue to get a response, and the NYPD is more apt to make a legal issue of it than most. They routinely used “Glomar” replies to requests. A “Glomar” response is an FBI/CIA tactic that neither confirms nor denies the existence of the documents being requested, thereby stalling for more time.

Executive Director of the Surveillance Technology Oversight Project Albert Fox ...

How to Clear Your Record of Marijuana Charges in Illinois

While Illinois has legalized recreational marijuana and pardoned more than 11,000 people with marijuana cases, removing marijuana charges and convictions from your record may require more leg work from some who don’t qualify under the automatic clearing of certain marijuana records.

“We are ending the 50-year-long war on cannabis,” Gov. J.B. Pritzker said in a statement just after signing into law a measure that legalized recreational marijuana in Illinois. “We are restoring rights to many tens of thousands of Illinoisans,” he said.

But getting those rights restored may take a bit of work for some but will be automatic for others. Last June, Illinois became the eleventh state to legalize marijuana and was one of the first to do so through legislation instead of a vote from the public.

The new law allows removal of marijuana charges from someone’s record, which will greatly help with employment, housing, and other opportunities. So, how do you take advantage of the new law? If you have a charge or conviction for less than 30 grams of marijuana that wasn’t tied to a violent crime, the process is automatic. You don’t have to do anything. But it can take a while. ...

Could a Second Chance be the Answer?

Louisiana has one of the U.S.’s toughest second-degree murder sentencing structures. If convicted, it is an automatic life without parole. The state currently has about 5,000 of its approximately 33,000 prisoners serving life sentences, 51 percent of those for a second-degree murder charge.

Hayward Jones is one such prisoner. He was locked up in 1996 for a burglary, which ended with the death of 71-year-old Daryll Van Dan. Although the autopsy and the pathologist’s report stated that Van Dan died of cardiac arrest and that there were no strangulation marks, Jones was still convicted of second-degree murder on the basis of his codefendant’s testimony.

Now he mentors students in a reentry program at Elayn Hunt Correctional Center, as well as delivers speeches in surrounding churches and courthouses. “Nobody wants to be known for the worst moment in their life,” he stated. “We’ve all made mistakes, but we can move forward.”

Louisiana began passing stringent sentencing laws in the 1970s, starting with mandatory minimums and abolishing parole for life sentences, all in response to popular get-tough-on-crime policies. Discretionary sentencing was taken away from judges. Critics agree that the problem is mandatory sentencing does not take into consideration circumstances ...

Wrongfully Convicted NY Man Freed After 24 Years

There were many times Pablo Fernandez could have given up. Yet after spending over half his life behind bars, he never wavered in maintaining his innocence.

‘‘It was so difficult for me to be in prison for so many years when I knew the case against me was totally fabricated,” he said.

Fernandez, now 47, was only 22 at the time he was arrested and charged with a murder-for-hire killing of a gang member in Harlem. He was convicted on the word of several witnesses in 1996 and sentenced to 25-to-life.

Fernandez stated his family and attorneys never lost faith in his innocence, and their support was crucial as the appeals process dragged on for years into decades. Cracks began to appear in the prosecution’s case as one witness after another recanted their testimony and other information came to light that had been withheld at Fernandez’s trial.

In denying their original testimony, three eyewitnesses said they had been instructed by Albert Melino, a dirty NYPD cop, to finger Fernandez as the murderer. This ran counter to their first descriptions of the gunman as being middle-aged, light-skinned, with long, graying hair.

Fernandez was 20 and dark-skinned with his ...

News in Brief

Arizona: A sheriff’s deputy who roughed up a 15-year-old quadruple amputee during an arrest at a state-operated group home in September 2019 will not face excessive use of force charges, the Pima County Attorney’s Office announced March 10, 2020. “The teen, in a group home after being abandoned by his family, apparently knocked over a garbage can and verbally threatened a worker. That’s why the deputy was called to the home,” KOLD News reported. Video from the incident went viral. “Imagine you were this boy with no limbs who just got tackled by this large man with a badge and gun and this man is now screaming in your face and he’s now threatening your friend who’s recording this whole incident … Absolutely, that’s egregious,” Pima County Public Defender Joel Feinman told KOLD News. Disorderly conduct charges against the teen were dropped.

California: In an apparent murder-suicide, Law & Crime reported on March 9, 2020, that assistant U.S. attorney Timothy Delgado of Granite Bay fatally shot his wife Tamara Delgado before turning the gun on himself. Delgado was a prosecutor in the Eastern District of California. Delgado prosecuted narcotics and firearms cases. The couple were married for about five ...

Chicago Police Department Ordered to Release 49 Years of Misconduct Files

On January 10, 2020, a judge in Cook County, Illinois, ordered the Chicago Police Department (“CPD”) to produce by the end of 2020 all misconduct files from 1967 to 2015. Judge Alison Conlon noted that the CPD had “willfully and intentionally failed to comply” with the Illinois Freedom of Information Act (“FOIA”).

The FOIA lawsuit was brought by former Illinois state prisoner Charles Green. He was incarcerated for over two decades after being convicted of a quadruple murder that occurred on Chicago’s West Side. Green has continuously maintained his innocence.

Green filed the FOIA request with the CPD in 2015, six years after he was released from prison. He requested all closed complaint register files from 1967 to 2015. According to Green’s attorney, Jared Kosoglad, the request was made “in order to help him discover evidence of his innocence and to preserve and disseminate evidence of innocence to others wrongfully convicted.”

Kosoglad said the files would be published on the website of the Invisible Institute — an organization that has previously publicized FOIA releases from law enforcement agencies. As of January 16, 2020, the CPD had only turned over about 100 of the 174,900 responsive documents it ...

 

 

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