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Criminal Legal News: June, 2020

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Volume 3, Number 6

In this issue:

  1. Racism and Wrongful Convictions (p 1)
  2. Sixth Circuit Grants Habeas Relief After Michigan Court Violates Confrontation Clause (p 10)
  3. Ninth Circuit: Mental Impairment that Prevented ‘Monitoring’ of Habeas Counsel’s Actions May Require Equitable Tolling (p 12)
  4. Tenth Circuit Vacates District Court’s Order Sealing Plea Supplement, Explaining Local Court Rule Doesn’t Abrogate Common Law Right of Access to Judicial Records (p 13)
  5. Federal Judge Issues Order Reducing 40-Year Stacked § 924(c) Sentence Based on First Step Act Changes to Compassionate Release (p 14)
  6. Latest Forensic Technology, Pattern Analysis, May Be ‘Pseudoscience’ (p 16)
  7. SCOTUS: Jury Verdicts Must Be Unanimous to Convict on Criminal Charges, Overruling Apodaca (p 18)
  8. ATF: What Is a Gun? (p 19)
  9. Michigan Supreme Court Announces that Duress May be Asserted as an Affirmative Defense to Felony Murder, Overruling Gimotty and Etheridge (p 20)
  10. Texas Court of Criminal Appeals: Failure to Include ‘Or Others’ in Jury Instruction for Self-Defense Against Multiple Assailants Deprived Defendant of Defense (p 21)
  11. Virus Vigilantes v. Virus Violators: Shunning, Shaming, or Policing COVID-19 May not Be the Cure (p 22)
  12. SCOTUS: Due Process Doesn’t Require States to Adopt a Specific Test for Determining Insanity (p 24)
  13. Fifth Circuit: Defendant Lacked Culpability in Attempting to Export Ammunition by Merely Purchasing It (p 25)
  14. Iowa Supreme Court Vacates Guilty Plea for Lack of Evidence and Ineffective Assistance of Counsel (p 26)
  15. Second Circuit: Habeas Petition Not Moot Where It Attacked Inactive Original Order That Gave Rise to Current Active Order Restraining Petitioner’s Liberty (p 26)
  16. Federal District Court Finds ‘Confusion’ Over Law in State Court Excused Late Filing of § 2255 Motion (p 28)
  17. Seventh Circuit Reiterates IAC Requires Only ‘Reasonable Probability,’ Not ‘More Likely Than Not,’ of Different Outcome (p 29)
  18. Divide and Conquer: New Algorithm Examines Crime-Scene Bullets Segment by Segment (p 30)
  19. U.S. Supreme Court Justice Files Statement on Court’s Refusal to Hear Habeas Case, Despite Deep Circuit Split (p 31)
  20. SCOTUS: Knowledge that Driver’s License of Vehicle’s Registered Owner Was Revoked Provides Reasonable Suspicion to Initiate Traffic Stop (p 32)
  21. Don’t Allow Government to Abuse Emergency Powers After COVID-19 Threat Subsides (p 33)
  22. Notorious Louisiana Prosecutor Fired for Misconduct Technicality (p 34)
  23. Illinois Supreme Court: Failing to Stipulate Felon Status Allowing Jury to Hear About Murder Conviction Constitutes IAC (p 34)
  24. 10th Circuit: Evidence Insufficient to Support Conviction for Attempting to Kill Witness (p 35)
  25. $369,000 Settlement in Police Raid of Journalist’s Home and Office (p 36)
  26. Delaware Supreme Court Clarifies Meaning of ‘Mixture’ as Used in State’s Controlled Substances Act (p 36)
  27. Colorado Supreme Court: Defendant Has No Duty to Bring Himself to Trial (p 37)
  28. Fifth Circuit Finds IAC for Failure to Object to Court’s Jury Instructions that Constructively Amended Indictment by Lowering Government’s Burden of Proof (p 38)
  29. Pennsylvania Supreme Court: Cronic’s Presumption of Prejudice Triggered by Counsel Failing to Secure Interpreter for First Day of Trial (p 39)
  30. U.S. Supreme Court Rejects Fifth Circuit’s Rule Barring Plain-Error Review of Unpreserved Factual Arguments (p 40)
  31. Ohio Supreme Court Announces New Standard for ‘Actual Racial Bias’ for Jurors and Holds Counsel Was Ineffective for Failing to Strike Racially Biased Juror (p 40)
  32. FBI’s Long History of Squelching Political Dissent Under the Guise of National Security (p 41)
  33. Utah Supreme Court: Dismissal of Second Post-Conviction Petition Improper Where First Petition Voluntarily Withdrawn (p 42)
  34. No Consequences for Prosecutors’ Bad Behavior (p 42)
  35. Nevada Supreme Court Rules Bail Determination Requires Due Process and Severs Unconstitutional Language from Bail Statute (p 43)
  36. Federal Court Overturns Conviction for Person Linked to Former Subway Spokesperson’s Child Porn Case (p 44)
  37. Study Sheds Light on ‘Recidivism’ and Probation and Parole Violations (p 45)
  38. Utah Residents Can Wind Up in Jail When They Miss Loan Payments (p 46)
  39. California Court of Appeal: Unoccupied Running Vehicle Doesn’t Justify Warrantless Search of Residence (p 46)
  40. Interpreting Emojis as Court Evidence (p 47)
  41. LAPD Officers Accused of Entering Names of Innocent People Into Gang Database (p 47)
  42. ‘No-Knock Raids’ an Increasing Danger to Public Safety (p 48)
  43. Massachusetts Supreme Judicial Court Clarifies Standards for Exit Order and Patfrisk (p 48)
  44. A Mass Purge of Misconduct Records by Phoenix, Arizona Police (p 49)
  45. Cops in Missouri Exploit Loophole to Seize $2.6 Million from Innocent Citizens (p 49)
  46. How Old Is That Fingerprint? (p 50)
  47. News in Brief (p 50)

Racism and Wrongful Convictions

The meaning of “race” is not clearly defined. Further, perhaps due to a lack of a clear definition of race, the breakdown of statistics by racial groups is not standardized. Most criminal justice statistics list racial group subdivisions of White, Black, and Hispanic. Yet there is no clear definition of what constitutes White or Black, and Hispanic is not a racial group at all, but rather an ethnic group made up of multiple races. Further, this type of designation lumps people of Asian ancestry in with Whites and lists Native Americans as White or Hispanic while ignoring those of mixed racial heritage altogether.

One way to mitigate this problem is to allow people to self-identify their racial identity, but this inevitably leads to totals in excess of 110% as some people identify with more than one racial and/or ethnic group. Given these problems, any statistical study involving race and the criminal justice system must be carefully scrutinized.

“Wrongful conviction” is also subject ...

Sixth Circuit Grants Habeas Relief After Michigan Court Violates Confrontation Clause

The U.S. Court of Appeals for the Sixth Circuit held on April 7, 2020, that a Michigan court’s violation of a defendant’s right to confront the witness against him in court was not “harmless,” as the state court had held, and granted habeas corpus relief requiring his release or a new trial.

There was no dispute that the State violated Joseph Reiner’s constitutional right to confront its witness against him. The State admitted as much, after it used a statement made by the broker of a pawn shop that Reiner had been in the shop on the day of a home invasion and stabbing that lead to the death of a woman in Macomb County in 2011. Reiner was charged with several counts, including murder.

The State’s case relied heavily on the pawn broker’s statement. He told detectives that Reiner came in the shop on that day and threw “some items” on the counter and asked what they were worth. When the detective asked about a ring he saw in a canister matching the description of a ring taken from the victim, the broker said it was possible that Reiner had brought in the ring to pawn. ...

Ninth Circuit: Mental Impairment that Prevented ‘Monitoring’ of Habeas Counsel’s Actions May Require Equitable Tolling

The U.S. Court of Appeals held on March 25, 2020, that a prisoner’s mental impairment that prevented him from “monitoring” his habeas counsel’s actions, which led to the delayed filing of his state habeas petitions, may have been cause for equitable tolling with respect to the late filing of his federal habeas petition.

Thomas Milam is serving a life sentence in a California state prison. His family hired a lawyer, Stratton Barbee, to file a state habeas corpus petition in 2007. The petition was filed just months after Milam’s conviction became final in 2008, and it was denied two months later on the merits by the state trial court. But Barbee didn’t file an appeal until nearly eight months later, and when that was summarily denied, he filed an appeal with the California Supreme Court over three months later. [Writer’s note: California has a unique habeas system, where an “appeal” is taken by simply filing another habeas petition in the next highest court, and there is no time limit as long as it’s filed within a “reasonable time.” Valdez v. Montgomery, 918 F.3d 687 (9th Cir. 2019).]

Milam’s family then hired a new lawyer, ...

Tenth Circuit Vacates District Court’s Order Sealing Plea Supplement, Explaining Local Court Rule Doesn’t Abrogate Common Law Right of Access to Judicial Records

Bacon pleaded guilty to multiple counts, including bank robbery. At issue in this appeal was the district court’s decision to file under seal Bacon’s supplement to his plea agreement.

Bacon had refused to cooperate with the Government, and he informed the trial court that his life would be in danger when other prisoners read that his supplement was under seal because fellow prisoners would wrongly conclude the sealed record meant he had cooperated.

The Government argued the supplement should be sealed pursuant a local rule of the District of Utah that required all supplements to plea agreements be filed under seal, for the sake of uniformity.

The district court, relying on the local rule, sided with the Government. On appeal, Bacon argued that the district court erred by failing to consider the common law right of access to judicial records and by failing to make case-specific findings regarding sealing of the record.

Because Bacon had objected to the sealing of the record only on the ...

Federal Judge Issues Order Reducing 40-Year Stacked § 924(c) Sentence Based on First Step Act Changes to Compassionate Release

On a cold February 2003 night, my life was shattered. That is when I was arrested and charged with a crack cocaine conspiracy along with two § 924(c) counts. My mandatory minimum sentence could be no lower than 40 years. And after a three-week trial, that is exactly what I was sentenced to at 24 years old.

I was sent to USP Big Sandy in Kentucky, where I immediately began going to the law library and working on my appeal. With the assistance of attorney Jillian Harrington, I was successful on my appeal in part. The case was remanded to the district court for a hearing related to ineffective assistance of counsel that occurred during the plea-bargaining stage. After the hearings, my request for relief was denied. A new appeal on that issue was also rejected. At that point, my 40-year sentence was looking like my reality for the next four decades.

This was a prospect that I could not accept. This is when my game plan changed — I decided that my days would now be spent in the law library. Researching the law became easy for me, and in time, I would read some very ...

Latest Forensic Technology, Pattern Analysis, May Be ‘Pseudoscience’

Television crime dramas and docudramas have, for decades, lulled the public into accepting the infallibility of forensic crime science. However, a groundbreaking study by the National Academy of Sciences (“NAS”) — made up of legal, technical, and policy experts authorized by Congress in 2005—was tasked with investigating the reliability of forensic science, ultimately casting serious doubt on many of the techniques investigators used to convict defendants.

According to S.J. Nightingale with the School of Information at the University of California, Berkeley, “The NAS Report” published in 2009, “calls for a broad and deep restructuring of how forensic techniques are validated and applied, and how forensic analysts are trained and accredited.” The report determined, “[with] the exception of nuclear DNA analysis ... no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

One highly questionable technique routinely used over the past 50 years by the FBI to secure convictions is that of photographic pattern analysis. When subjected to rigorous, unbiased testing, photographic analysis may be used to compare something as innocuous as a seam pattern found ...

SCOTUS: Jury Verdicts Must Be Unanimous to Convict on Criminal Charges, Overruling Apodaca

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) held that in jury trials of criminal cases the verdict must be unanimous to convict the defendant, overruling Apodaca v. Oregon, 406 U.S. 404 (1972).

Evangelisto Ramos was convicted of a serious crime in Louisiana by a jury vote of 10 to 2. He was sentenced to a term of life imprisonment without the possibility of parole. Ramos challenged his conviction on the ground that a conviction by a non-unanimous jury violates his Sixth Amendment right to a jury trial.

Justice Gorsuch, writing for the Court, observed that “[i]n 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But not in Louisiana. Along with Oregon, Louisiana has long punished people based on 10-to-2 verdicts like the one here.” But at one time, all States required unanimous verdicts.

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....” The right to a jury trial in criminal cases is also enshrined in Article III, section ...

ATF: What Is a Gun?

Making a decision about what is or is not a “firearm” under the law would seem to be a fairly straightforward process, but recent controversy about the regulations used by the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosive (“ATF”) has shown that the definition of a gun is not nearly as clear as it seems.

The legal definition of a firearm is laid out in the 1968 Gun Control Act. That law’s definition includes not only what most people would think of as a gun but also “the frame or receiver of any such weapon.” 18 U.S.C. § 922(a)(3). Defining what a receiver or frame is, however, was left up to regulating agencies – in this case, the ATF. The ATF defined a receiver as having three elements: hammer, bolt or breech-lock, and firing mechanism. This “receiver,” even without the rest of the weapon, is legally considered a firearm in itself.

The problem with this definition, according to former ATF agent and firearms expert Dan O’Kelly, is that roughly 60 percent of the guns in America do not have a single part that fits this description. As a practical matter, this means the ATF should not ...

Michigan Supreme Court Announces that Duress May be Asserted as an Affirmative Defense to Felony Murder, Overruling Gimotty and Etheridge

In a case of first impression for the Supreme Court of Michigan, the Court announced that the affirmative defense of duress may be asserted in a prosecution for felony murder if such defense is available for the underlying felony, overruling People v. Gimotty, 549 N.W.2d 39 (Mich. Ct. App. 1996), and People v. Etheridge, 492 N.W. 2d 490 (Mich. Ct. App. 1992).

Tiffany Lynn Reichard agreed to help her boyfriend, Michael Beatty, rob Matthew Cramton. Reichard knocked on Cramton’s door. When Cramton came to the door, Beatty entered with a gun to rob him while Reichard acted as a lookout. Beatty exited the home carrying a knife and covered in blood. Reichard drove Beatty to his mother’s home and helped him dispose of his clothes. Cramton died of multiple stab wounds.

Reichard was charged with open murder under a felony-murder theory with armed robbery as the underlying felony in violation of MCL 750.316. Prior to trial, Reichard filed a motion to present a duress defense. Reichard claimed that Beatty had physically and sexually assaulted her in the past and that she aided him in the robbery because she was under duress. She contended that because she committed ...

Texas Court of Criminal Appeals: Failure to Include ‘Or Others’ in Jury Instruction for Self-Defense Against Multiple Assailants Deprived Defendant of Defense

The Texas Court of Criminal Appeals (“TCCA”) held on February 5, 2020, that the failure to include “or others with him [the primary assailant]” in the jury instruction for a self-defense against multiple assailants defense was a “calculated” omission that deprived a defendant of his defense, requiring reversal of the conviction.

Patrick Jordan was encouraged by an ex-girlfriend, Summer Varley, to stop by a local bar to buy her a drink since he was moving out of town. Jordan and his friend Coby Bryan already planned to eat at a restaurant next to the bar, so he agreed. When they arrived at the bar, the two were met by Varley’s large, angry friends, who had been drinking and advised Jordan not to speak to Varley. Jordan agreed and they went next door to eat.

Varley’s friends, Jordan Royal, Austin Crumpton, Damon Prichard, and Joshua Stevenson, followed Jordan and Bryan and became “aggressive” with them. Jordan and Bryan then changed their minds about eating there and tried to leave. However, Varley’s friends turned violent, with Royal knocking out Bryan. Jordan fell and the mob followed him, with Royal attacking him.

Jordan then stopped the attack by shooting his ...

Virus Vigilantes v. Virus Violators: Shunning, Shaming, or Policing COVID-19 May not Be the Cure

Crises have a way of bringing out the best as well as the worst in all of us. When driven by fear of the unknown, and in this case the unknown is a microscopic viral assailant known respectfully as COVID-19, a society’s response can vary dramatically.

In the media, we are shown messages of hope, endurance, and recovery, yet for every positive message, the media seem to feed us two that promote shunning, shaming, and of course, political slamming.

Fear of the unknown tends to breed contempt, and during a crisis, the blame game turns to war. Human nature attempts to mask its own fear through the use of deflection, and because we are all at war with this epidemic, we tend to deflect by offering our opinion on who misspoke, who mis-stepped, or who misled us deeper into this contagion. 

Of course, not everyone is focused on the negative. We see people creating nonprofit food banks, setting up websites to offer volunteer services for the sick or elderly, and people hand-sewing masks from their basement or garage. We see the best in people.

On the flip side of that equation, however, we also witness the ...

SCOTUS: Due Process Doesn’t Require States to Adopt a Specific Test for Determining Insanity

The Supreme Court of the United States (“SCOTUS”) determined that “no insanity rule in this country’s heritage was ever so settled as to tie a State’s hands centuries later” and held that Kansas did not violate due process by failing to “adopt an insanity test turning on a defendant’s ability to recognize that his crime was morally wrong.”

James Kahler was charged with capital murder after he shot and killed four members of his family. Prior to trial, he filed a motion arguing that Kansas had “unconstitutionally abolished the insanity defense” by allowing the conviction of a mentally ill person “who cannot tell the difference between right and wrong.”

Kansas’ statutory scheme for allowing an insanity defense permits juries to acquit only if a defendant “as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense” and “mental disease or defect is not otherwise a defense.” Kan. Stat. Ann. § 21-5209. Culpable mental state is the “mens rea” or “intent formed in the mind” to commit a crime.

Kahler argued that this deprived him of due process because he wanted to present an insanity defense based ...

Fifth Circuit: Defendant Lacked Culpability in Attempting to Export Ammunition by Merely Purchasing It

The U.S. Court of Appeals for the Fifth Circuit held that a district court clearly erred in assigning a defendant a three-level enhancement for attempting to export ammunition when he had purchased the ammunition but was yet to take further steps toward its export.

Rodolfo Rodriguez-Leos was on a non-immigrant visa to the U.S. from Mexico when he purchased a case of ammunition from an Academy Sports store in McAllen, Texas, an illegal act based on his visa status. Federal agents followed him until he stashed the shells in a bush in a residential neighborhood. They arrested him shortly afterward in nearby Hidalgo, Texas, while he was shopping at an auto parts store.

Rodriguez admitted to purchasing the ammunition for “El Chivo,” who would pay him $50 to buy ammunition and later deliver it to an “unknown male” at a Whataburger in Hidalgo. He stashed the ammunition in McAllen, so it would not be in his possession until El Chivo called him “a day or two later.”

Rodriguez pleaded guilty to unlawful possession of ammunition, a base level of 14 as per the U.S. Sentencing Guidelines under § 2K2.1. He was enhanced to level 26 through a ...

Iowa Supreme Court Vacates Guilty Plea for Lack of Evidence and Ineffective Assistance of Counsel

The Supreme Court of Iowa ruled there was no factual basis to support a defendant’s guilty plea to possessing a tool with the intent to use in the unlawful removal of a theft detection device. The Court further ruled that defense counsel was ineffective for allowing the defendant to plead guilty to the charge.

Before the Court was the appeal of Charles Edward Ross. He was arrested, along with co-defendant Calvin Lacey, in the early morning hours of September 24, 2018. Ross used bolt cutters to cut the padlock off a steel cable that was wrapped around a riding lawn mower that was on display at a local farm-supply store onto a rented truck. An employee who was arriving for work saw them and called police.

They fled but were apprehended down the road. A search of the vehicle resulted in discovery of bolt cutters, the mower, a ski mask, and methamphetamine. Ross was charged with theft in the second degree, possession of a “tool, instrument or device to remove a theft detection device” under Iowa Code § 714.7B(3), and possession of methamphetamine.

A plea agreement was reached on April 1, 2019. It provided for the ...

Second Circuit: Habeas Petition Not Moot Where It Attacked Inactive Original Order That Gave Rise to Current Active Order Restraining Petitioner’s Liberty

The U.S. Court of Appeals for the Second Circuit held that a habeas petition is not moot where it attacks an earlier order that is inactive but gave rise to a current active order restricting the petitioner’s liberty.

In December 2007, Steven Janakievski attacked a coworker with a knife. He was charged with first-degree assault and tried in the County Court for Monroe County, New York.

At trial, psychiatric experts for the prosecution and the defense agreed that, at the time of the knife attack, Janakievski was suffering from a psychotic disorder and did not appreciate the wrongfulness of his conduct. The trial court accepted Janakievski’s plea of not responsible by reason of mental disease or defect pursuant to CPL § 330.20 based upon the experts’ testimony.

CPL § 330.20(2) required Janakievski to undergo a psychiatric examination. Based upon that examination, the trial court, in April 2009, found that he suffered from a dangerous mental disorder and committed him to the Rochester Psychiatric Center (“RPC”). The trial court issued subsequent retention orders continuing Janakievski’s commitment in October 2009, October and December 2010, and August 2012 on the ground that Janakievski continued to suffer from mental illness. In ...

Federal District Court Finds ‘Confusion’ Over Law in State Court Excused Late Filing of § 2255 Motion

Finding confusion in the state courts over the status of the law and obstacles put in place by the federal prison system that hindered filing for relief, the U.S. District Court for the District of Vermont granted resentencing, excusing the late filing of a motion to vacate a sentence under 28 U.S.C. § 2255.

Federal prisoner Shawn Simard filed a motion to vacate his sentence under § 2255 after he successfully challenged a prior conviction in state court that was used to double his federal sentencing range. He had been convicted of possession of child pornography under 18 U.S.C. § 2252(a)(4)(B) and sentenced in 2012 to just over 10 years in federal prison without parole, under a 10-year mandatory minimum for having a qualifying prior sex offense in Vermont. Without the prior conviction, Simard faced up to 10 years in prison.

Simard’s motion was filed five years after his sentencing and three years after that sentence became “final,” but he argued that his motion was filed within the one-year limit of § 2255 because he had filed it within one year of the vacatur of his prior conviction by the state court.

The magistrate judge assigned to ...

Seventh Circuit Reiterates IAC Requires Only ‘Reasonable Probability,’ Not ‘More Likely Than Not,’ of Different Outcome

The U.S. Court of Appeals for the Seventh Circuit held that the federal district court unreasonably applied “clearly established federal law” when it erroneously required a more demanding standard of review than the law requires for ineffective assistance claims (“IAC”) where trial counsel was clearly ineffective, requiring remand to grant habeas relief.

The state trial court agreed that Terez Cook’s trial lawyer was ineffective. Cook lost at trial after numerous errors prompted the trial judge to grant him a new trial, saying that counsel’s “deficiencies are so big that I would have to conclude if it had been tried correctly, that there’s a probability of a different result.”

When the State appealed, the Wisconsin Court of Appeals reversed, holding that Cook would not have won at trial absent the errors. Cook then filed a habeas corpus petition in federal court, raising several IAC claims. The district court found that the state court of appeals had in fact applied the wrong IAC standard but nonetheless concluded it was required to give deference to the state courts, so it denied Cook’s petition. He appealed.

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court may not grant ...

Divide and Conquer: New Algorithm Examines Crime-Scene Bullets Segment by Segment

On the morning of March 22, 1915, residents of the small town of West Shelby, New York, awoke to a horrific scene. A woman clad only in a bloodied nightgown lay shot to death in the snow on the doorstep of an immigrant farmhand, Charles Stielow. Across the street, in the farmhouse where Stielow had recently begun work and where the dead woman had kept house, 70-year-old farmer Charles Phelps was found shot and unconscious. He died a few hours later.

After finding that Stielow lied when he told investigators he did not own a gun, the police arrested him on Aug. 21, 1915. During Stielow’s trial, a self-proclaimed criminologist, Albert Hamilton, testified that the nine bumps he said he found inside the barrel of Stielow’s .22 caliber revolver matched the nine scratch marks he had identified on the same caliber bullets at the crime scene. Although Hamilton never showed his evidence to the jury, declaring the findings were so technical they could only be discerned by an expert, Stielow was found guilty of murder in the first degree. He was sentenced to death in the electric ...

U.S. Supreme Court Justice Files Statement on Court’s Refusal to Hear Habeas Case, Despite Deep Circuit Split

While the U.S. Supreme Court refused to hear a case to settle a deep and widening split among the federal courts, the Court’s newest justice filed a statement on March 23, 2020, saying that he would grant certiorari in the “right case” to resolve a problem that even the government admits needs fixing.

In his statement, Justice Kavanaugh seemed to suggest that the U.S. Court of Appeals for the Sixth Circuit was wrong in the way it denied habeas relief to Edwin Avery, who filed a motion to vacate his federal prison sentence under 28 U.S.C. § 2255 based on a retroactive change in federal law by the Supreme Court. The problem was that Avery was denied relief by the district court, and instead of appealing, he filed an application in the Sixth Circuit for authorization to file another § 2255 motion raising the same claim.

The Sixth Circuit granted him permission to file another motion in the district court, but the district court dismissed his motion, saying he was barred from filing the same claim he had filed in his earlier motion. When he appealed that denial, the Sixth Circuit agreed and instructed that Avery’s motion ...

SCOTUS: Knowledge that Driver’s License of Vehicle’s Registered Owner Was Revoked Provides Reasonable Suspicion to Initiate Traffic Stop

The Supreme Court of the United States (“SCOTUS”) whittled away at Fourth Amendment protections by holding that when a police officer has knowledge that the driver’s license of a vehicle’s registered owner has been revoked this gives rise to an inference that the driver is likely the owner and provides the officer with reasonable suspicion to initiate an investigative stop unless the officer also possesses other information that would negate the inference.

Charles Glover, Jr., was charged in Douglas County, Kansas with driving as a habitual violator after a traffic stop revealed he was driving with a revoked license. Glover filed a motion to suppress all evidence seized during the stop, arguing the officer lacked reasonable suspicion to initiate the traffic stop.

At the suppression hearing, neither Glover nor the officer testified. Instead, the parties stipulated to facts that included: (1) Sheriff’s Deputy Mark Mehrer observed a 1995 Chevrolet 1500 pickup truck and ran a check on the truck’s license plate; (2) the check revealed the plate was registered to a Chevrolet 1500 pickup, the truck was registered to Glover, and Glover’s license was revoked; (3) Mehrer did not observe any traffic violations and did not attempt ...

Don’t Allow Government to Abuse Emergency Powers After COVID-19 Threat Subsides

During this COVID-19 crisis, state and local authorities are ordering people to shelter in place, banning large gatherings, and closing businesses. These restrictions are implemented under traditional police powers that allow designated officials to take emergency actions to protect the public’s health, safety, and welfare during a crisis. But from history, we see that some of those officials who exercise extraordinary powers during times of crisis abuse this authority long after the crisis has abated.

During World War I, President Woodrow Wilson urged Congress to pass the Espionage Act of 1917 in response to the perceived threat of enemies within the U.S. The Espionage Act criminalized anti-war speech. And presidential candidate Eugene Debs was convicted under the Espionage Act in 1918 for a mild anti-war speech he gave at an afternoon picnic. Even though the U.S. was no longer at war with Germany, the U.S. Supreme Court upheld Debs’ conviction in 1919. He remained in prison for speaking out against the war until President Warren G. Harding pardoned him. Astonishingly, the Espionage Act, though amended several times, continues to be current law to this day.

During that same war, state governments passed laws infringing upon the rights ...

Notorious Louisiana Prosecutor Fired for Misconduct Technicality

Jason Brown was a ‘lock ‘em up tight and throw away the key’ type. One of the most disliked prosecutors in Caddo Parish, Louisiana, history, he was a hard-charging and inflexibly tough prosecutor who pushed for maximum punishments. Several of them were recounted by investigative journalist Jon Campbell in The Appeal.

Back in 2015, Brown left his Assistant District Attorney (“ADA”) job with 11 other DAs immediately after retired Court of Appeal Judge James Stewart became the parish’s first Black District Attorney (“DA”). Brown was fired.

In March 2020, Calcasieu Parish District Attorney’s Office fired Brown as a prosecutor for his handling of a continuance motion in the Joey Julian murder trial. In addition, the defense in that case accused him of withholding “a mountain” of exculpatory evidence.

In Caddo, Brown worked with death penalty champion Dale Cox, who appeared on 60 Minutes, saying the state should use capital punishment more often.

Among Brown’s many victories was winning a guilty verdict with a life without parole prison sentence for Fate Winslow. A homeless man, Winslow sold a $20 baggie of marijuana to an undercover cop.

Brown secured a life sentence for Larry John Thompson over ...

Illinois Supreme Court: Failing to Stipulate Felon Status Allowing Jury to Hear About Murder Conviction Constitutes IAC

The Supreme Court of the State of Illinois reversed a defendant’s conviction because his attorney failed to stipulate his felon status at trial, and the jury was likely prejudiced by knowing his previous conviction was for murder.

Leslie Moore was pulled over in Joliet, Illinois, because he failed to signal his intent to turn at least 100 feet prior to turning. During the traffic stop, a gun was located in the center console of his vehicle. Because of a 1990 murder conviction, he was charged with being a felon in possession of a firearm.

Three witnesses were heard from at trial. Moore’s friend Sherry Walls testified that he was helping her move and that she had borrowed Moore’s car earlier that day. She used his car to transport her two pistols, for which she demonstrated legal proof of ownership. She testified that she placed one of the pistols in the center console and did not realize until after Moore had left that she had forgotten to remove it from the vehicle.

Will County Sheriff’s Deputy Thomas Hannon testified that he observed Moore “dip” his right hand or shoulder to the center console during the traffic stop, but ...

10th Circuit: Evidence Insufficient to Support Conviction for Attempting to Kill Witness

The U.S. Court of Appeals for the Tenth Circuit ruled that the evidence was insufficient to support John Terry Chatman, Jr.’s conviction of obstruction of justice by attempting to kill a witness.

Chatman was walking around the corner of the Trade Winds Hotel when two officers from the Tulsa Police Department asked him for identification. Chatman said he didn’t have any ID and asked if he was free to leave. The officers replied yes, so Chatman got into a van and drove away. The officers ran a check on the license plate and discovered it did not match the van. They then located the van parked outside a Quik Trip convenience store. The officers saw Chatman’s girlfriend coming out of the convenience store, and she indicated to them that Chatman was in the van.

The officers saw Chatman in the backseat of the van. They informed him that was under arrest, but he refused to step out of the van. The officers called for backup. Sergeant Mike Parsons arrived on scene, along with several other officers. Parsons began firing pepper balls at Chatman in an attempt to get him to exit the van.

After sharing a tearful ...

$369,000 Settlement in Police Raid of Journalist’s Home and Office

It was a quieting day for First Amendment freedom when San Francisco cops and the FBI raided the home and newsroom of freelance journalist Bryan Carmody May 10, 2019, in search of the source of a confidential police report into the Feb. 22, 2019, death of elected San Francisco Public Defender Jeff Adachi. They came armed with a sledgehammer and search warrants.

In March 2020, San Francisco reached a $369,000 settlement to a lawsuit filed August 29, 2019, by Carmody against the city and county. The payout was approved March 31 by the Board of Supervisors, the San Francisco Chronicle reports. In addition, Police Chief William Scott apologized for his department’s handling of the situation and conceded the searches were probably illegal; the warrants did not fully identify Carmody as a journalist, although Carmody had a police press pass for 16 years.

“I knew what they wanted,” Carmody told the Los Angeles Times after the incident. “They wanted the name.” They handcuffed Carmody for six hours while they hauled off notebooks, documents, cameras, phones, computers, and an iPod, according to latimes.com. The eight- to 10-officer squad drew their guns and combed through his belongings before transporting him to his office, ...

Delaware Supreme Court Clarifies Meaning of ‘Mixture’ as Used in State’s Controlled Substances Act

The Supreme Court of Delaware clarified the meaning of “mixture” as the term is used in Delaware’s Uniform Controlled Substances Act (“Act”).

Police recovered from the person of Darren Wiggins a vial containing an amber liquid and brown chunks. Wiggins was ultimately charged with several offenses, including one count of Aggravated Possession of PCP based on the contents of the vial.

At Wiggin’s trial, forensic chemist Heather Moody testified that the amber liquid tested positive for phencyclidine (“PCP”). She did not test the brown chunks and did not know what they were. She testified that the combined weight of the liquid and the chunks was 17.651 grams, but she had not weighed either the liquid or the chunks separately. The State offered no evidence as to the comparison of the brown chunks or their relationship to the liquid PCP mixture.

After the prosecution rested, Wiggins moved for judgement acquittal on the Aggravated Possession charge, arguing the State failed to prove the PCP mixture met the 15-gram statutory weight threshold.

The State had not proven the weight of the liquid PCP mixture and had not shown the brown chunks were part of that mixture. The Superior Court denied ...

Colorado Supreme Court: Defendant Has No Duty to Bring Himself to Trial

The Supreme Court of Colorado ruled that Edward Kevin DeGreat had no duty to bring himself to trial and ordered his charges dismissed with prejudice for violation of his right to a speedy trial.

In October 2018, the Supreme Court of Colorado affirmed the court of appeals’ decision reversing DeGreat’s conviction for aggravated robbery, concluding that he was entitled to a new trial where he could introduce evidence that he had acted in self-defense. People v. DeGreat, 428 P.3d 541 (Colo. 2018).

On November 6, 2018, the court of appeals issued a mandate returning jurisdiction of the case to the Arapahoe County District Court for the purpose of a new trial. On December 3, 2018, the district court issued a scheduling order directing counsel for DeGreat and for the People to contact chambers to set the case for a status conference at “the soonest available date.” The public defender’s office entered an appearance on behalf of DeGreat on December 6, 2018, and then no further action was taken by the court, the People, or defense counsel.

On June 4, 2019, DeGreat filed a motion to dismiss, asserting that the failure to commence trial within six months ...

Fifth Circuit Finds IAC for Failure to Object to Court’s Jury Instructions that Constructively Amended Indictment by Lowering Government’s Burden of Proof

The U.S. Court of Appeals for the Fifth Circuit ruled on March 31, 2020, that the district court’s constructive amendment to an indictment that allowed the Government to prove its case with an alternative, lower standard constituted ineffective assistance of counsel (“IAC”) where trial counsel failed to object to the error.

The Tagged.com profile said she was 18, so Brian Phea made arrangements for the teen to come to Texas and engage in prostitution. He was charged with the prostitution of a minor — because the girl, K.R., was actually 14. Count one of the indictment charged Phea “knowingly recruited ... Jane Doe knowing that Jane Doe had not attained the age of 18 years and that Jane Doe would be caused to engage in a commercial sex act.” 18 U.S.C. § 1591(a). Count two charged aiding and abetting the promotion of a business enterprise involving prostitution.

Phea took his case to trial, where the district court gave this jury instruction: “If the government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person recruited ... then the government does not have to prove that the defendant knew that the person ...

Pennsylvania Supreme Court: Cronic’s Presumption of Prejudice Triggered by Counsel Failing to Secure Interpreter for First Day of Trial

by Douglas Ankney

The Supreme Court of Pennsylvania ruled that the defendant was denied the effective assistance of counsel where a Spanish-language interpreter was not secured for the first day of trial and that counsel’s failure to do so triggered the application of the presumption of prejudice articulated by the U.S. Supreme Court in United States v. Cronic, 466 U.S. 648 (1984).

Miguel Diaz was charged with committing several sexual offenses against the daughter of his live-in girlfriend. Attorney John Walfish met Diaz for the first time at the courthouse on the first day of trial. During their first meeting, Diaz asked Walfish to request a Spanish-language interpreter because Diaz had been unable to understand the earlier proceedings at the preliminary hearing. Walfish made the request to the trial court. The judge advised that no interpreter was available, and he did not want to postpone the trial again as the case had already been postponed several times.

Walfish then changed the request, informing the court that Diaz had explained to him that an interpreter would be needed only when Diaz testified. The trial court then allowed the proceedings to begin without an interpreter because Diaz wouldn’t be testifying that ...

U.S. Supreme Court Rejects Fifth Circuit’s Rule Barring Plain-Error Review of Unpreserved Factual Arguments

In an opinion that amounted to just three paragraphs, the Supreme Court of the United States held on March 23, 2020, that the Fifth Circuit’s rule barring plain error review for unpreserved factual errors had “no legal basis,” and the Court vacated the lower court’s decision and remanded for review in the first instance.

When Charles Davis was convicted of drug and firearm charges after his 2016 arrest in Dallas, Texas, he was sentenced to just under five years in federal prison. But the judge ordered that sentence to run consecutively to whatever sentence the Texas state court would impose for offenses that occurred a year earlier. Davis never objected to his sentence.

Instead, on appeal to the U.S. Court of Appeals for the Fifth Circuit, Davis raised for the first time that the district judge should have run the sentences concurrent because the offenses were of the “same course of conduct” as provided under United States Sentencing Guidelines (“USSG”). Under USSG § 5G1.3(c), a federal sentence must run concurrent with any future state sentence “that is relevant conduct to the instant offense of conviction under ... § 1B.1.3 (relevant conduct).”

But the Court of Appeals refused ...

Ohio Supreme Court Announces New Standard for ‘Actual Racial Bias’ for Jurors and Holds Counsel Was Ineffective for Failing to Strike Racially Biased Juror

The Supreme Court of Ohio held that Glen E. Bates was deprived of his right to effective assistance of counsel when his attorney failed to inquire into a juror’s expressed racial bias or strike the juror.

Bates was convicted by a jury of aggravated murder and other charges stemming from the abuse, torture, and death of his 2-year-old daughter Glenara Bates. After a mitigation hearing, the jury unanimously recommended a sentence of death. Bates raised numerous arguments on appeal, one of which was that he was denied his constitutional right to effective assistance of counsel when his attorney failed to question and strike a juror who made racially biased statements on her juror questionnaire.

When answering the question, “Is there any racial or ethnic group that you do not feel comfortable being around,” Juror #31 answered “yes” and wrote “sometimes black people.” She also answered that she “strongly agree[d]” that some races are more violent than others and then wrote “Blacks” in the space allotted for explanation.

Even though Bates is Black, his attorney never asked Juror #31 about her answers to those questions. Furthermore, after exercising five of the six allotted peremptory strikes, defense counsel waived ...

FBI’s Long History of Squelching Political Dissent Under the Guise of National Security

by Jayson Hawkins

For nearly a century, one of the most important duties of the FBI has been to act as the primary counterterrorism force on American soil. Unfortunately, throughout that time, the FBI has shown a troubling tendency to surveil dissidents and view challenges to the status quo as national security threats. This tendency began with the young Bureau’s first large-scale raids and has continued, according to a recently released report, up to today.

The FBI began as the U.S. Department of Justice’s Bureau of Investigation in 1908. Founded by Theodore Roosevelt despite congressional resistance, this early Bureau was intended to be the leading edge of a national response to anarchists and violent unionists. After successfully silencing opposition to World War I, the Bureau began raids in 1919 aimed at what it called “subversives and Communists” but which really targeted Eastern European immigrants, Italians, and labor organizers, according to Alice Speri in her article, “The FBI Has a Long History of Treating Political Dissent as Terrorism.”

The so-called Palmer Raids (after then-Attorney General Mitchell Palmer) lasted months and led to the arrests of over 10,000 people in a dozen cities, though none of those arrested were even tied to ...

Utah Supreme Court: Dismissal of Second Post-Conviction Petition Improper Where First Petition Voluntarily Withdrawn

The Supreme Court of Utah held that there was no previous request for post-conviction relief to support dismissal of a second petition under Utah Code § 78B-9-106(1)(d) of the Post-Conviction Remedies Act (“PCRA”) where the first petition was voluntarily dismissed under Utah Rules of Civil Procedure, Rule 41(a)(1)(A).

Ronald Hand was convicted of aggravated sexual abuse of a minor in August 2013. In 2017, he simultaneously filed pro se petitions in the U.S. District Court for the District of Utah and in the Second District of Utah (“State Court”). In both courts, he used the preprinted form used by the federal courts for filings under 28 U.S.C. § 2254. Both petitions raised substantially the same issues. But when the State Court asked Hand to pay the filing fee, he requested his state petition be withdrawn under Rule 41(a)(1)(A). The State Court granted Hand’s request. However, the federal district court reviewed Hand’s petition still pending in that court and appointed counsel.

With the assistance of counsel, Hand filed an amended petition in federal court and a new petition in the State Court. The State moved for dismissal, contending that the new petition was procedurally barred by § 78B-9-106(1)(d) ...

No Consequences for Prosecutors’ Bad Behavior

It is not unheard of that the quest for justice occasionally ends in a mistrial.

That the defendant would then be retried six times for the same crime, however, is less of a misfire than it is a miscarriage of justice—especially when four of the verdicts were thrown out due to prosecutorial misconduct.

Curtis Flowers’ legal purgatory has stretched into its third decade as he awaits a seventh trial for allegedly murdering four people in 1996.

He has never wavered from maintaining his innocence, yet Doug Evans, the district attorney now serving his eighth term for the Fifth Circuit Court district in Mississippi, has consistently resorted to illicit tactics to obtain guilty verdicts against Flowers. The U.S. Supreme Court overturned the most recent one in June 2019 after court records showed Evans attacked the credibility of witnesses without reason, introduced inadmissible evidence, and used race to disqualify potential jurors. Despite Mississippi’s large Black population, Flowers’ juries routinely lacked any fellow Blacks.

Evans’ flagrant violations of courtroom procedure not only were overlooked by the voters who returned him to office last year, but he also managed to avoid any public discipline for his actions. While people in other ...

Nevada Supreme Court Rules Bail Determination Requires Due Process and Severs Unconstitutional Language from Bail Statute

In a case of first impression, the Supreme Court of Nevada ruled that bail determinations for pretrial detainees requires due process, announced the procedures to be followed, and severed unconstitutional language from NRS 178.4851(1).

The State obtained felony indictments against Aaron Frye and Jose Valdez-Jimenez, and the district court set bail in the amounts requested by the State: $250,000 for Frye and $40,000 for Valdez-Jimenez. Neither Frye nor Valdez-Jimenez was present when the district court set bail.

After Frye and Valdez-Jimenez learned of their bail amounts at arraignment, they moved to vacate or reduce the amounts. In their motions, they argued that the amounts were excessive, and the bail process violated their right to due process and equal protection. They argued that because they could not afford the bail, the order setting bail was tantamount to a detention order; therefore, they were entitled to an adversarial hearing before the court could set bail.

The district court held hearings on the motions and denied them. Both men filed petitions for writs of mandamus seeking an order commanding the district court to afford them the relief they sought in their motions. The Nevada Supreme Court consolidated their petitions for ...

Federal Court Overturns Conviction for Person Linked to Former Subway Spokesperson’s Child Porn Case

The U.S. District Court for the Southern District of Indiana overturned the conviction of Russell Taylor, a person linked to Jared Fogle’s child pornography case, finding that Taylor’s counsel failed to advise him that “the government never really had a case” with some of the charges it filed, before advising him to plead guilty, the Court said.

Taylor pleaded guilty in 2015 to 12 counts of producing child pornography and one count of possessing child pornography, after a woman told Indiana State Police that during a sex chat Taylor suggested to her he had images of “young girls.” Based on this information, law enforcement obtained a search warrant and found that Taylor had hidden cameras in his house that had captured images of minors showering and changing clothes. Authorities also found that Taylor had sent some images to Fogle, the longtime pitchman for Subway and founder of the Jared Foundation. Taylor worked closely with Fogle as the head of his foundation.

Fogle was also arrested and charged with receipt of child pornography and further charged with traveling to engage in sexual conduct with minors for going to New York City to have sex with two underage prostitutes. ...

Study Sheds Light on ‘Recidivism’ and Probation and Parole Violations

While this country has the highest rate of incarceration in the world, with 2.3 million of its residents in prison, it also has the alarmingly high rate of people on probation or parole: 4.5 million.

In other words, 1 in 55 adults in this country is on probation or parole. And of those 4.5 million, 40 percent will be re-arrested within one year of release and 70 percent within three years.

The Institute for Justice Research and Development (“IJRD”), a research center within the College of Social Work at Florida State University, filed its sixth quarterly report shedding some light on what the re-arrest of those who are on supervision means. Here’s what the multi-year study found.

Purpose of the Study

The study states up front that its focus is not about the rate of recidivism. Instead, the focus of the report is to highlight the impact that re-arrest of those on supervision has on them, their families, and society as a whole. The authors provide facts that might show re-arrest for non-criminal conduct could do more harm than good.

The idea, the authors say, is to create change by providing facts about supervision and recidivism and ...

Utah Residents Can Wind Up in Jail When They Miss Loan Payments

Utah residents suffer from the highest payday and auto loan interest rates in the United States. It is one of only six states that does not have an interest-rate cap on such loans. Moreover, despite Congress’ ban on debtors’ prison, more and more residents are finding themselves in jail after defaulting on their loans.

President Obama began drafting federal regulations to govern payday and auto loans while he was in office. Prior to that, these loan companies had never been regulated. The Trump administration has delayed this proposal, resulting in current payday and auto loan rules varying by state.

Many states have banned these loans entirely, but six (including Utah) have left them completely unregulated. Utah’s average annual interest rate is 652 percent with some as high as 2,607 percent. This means that a $700 loan could cost as much as $18,249 at the end of one year.

Although Utah’s unemployment rate is one of the country’s lowest and its population is the nation’s highest percentage of white, middle-class citizens, nonetheless, 25 percent of that population’s household income is less than $39,690 a year.

A Federal Reserve Board study stated that one in four adults could not ...

California Court of Appeal: Unoccupied Running Vehicle Doesn’t Justify Warrantless Search of Residence

Division One of the Fourth Appellate District of the California Court of Appeal ruled that an unoccupied vehicle left running in a driveway satisfied neither the “emergency aid exception” nor the “exigent circumstances exception” to justify the warrantless search of a residence. The Court further ruled that Senate Bill No. 136 (“SB 136”) limiting sentence enhancements based on prior convictions applied retroactively to cases not final as of January 1, 2020.

In December 2014, officers from the Palm Springs Police Department responded to a call that an unoccupied vehicle had been left running in the driveway of a residence for about 30 minutes. The car was determined to be owned by a rental company. One of the officers later testified at a suppression hearing that they became concerned that an occupant of the residence might be in distress or that crime was afoot. The residence was dark and no noise came from inside. A porch light was on. They rang the front doorbell and knocked but received no response. About 10 feet from the front door and under the same roofline, officers discovered another door which they believed opened to the main residence (but the door actually ...

Interpreting Emojis as Court Evidence

Emojis on cellphones and other digital devices have advanced their popularity as a way to express emotion. It should be no surprise then that their ubiquity has brought them into court cases. However, the accepted meanings of the emojis has not caught up to their ubiquity. Enter “forensic linguistics” — a field being remade to include analysis of the meaning and usage of emojis in communication, especially where the meaning of a phrase or image can be contentious.

In the U.S., one circuit court held that the use of the “tongue out” emoji was “intended to insult, ridicule, criticize and denigrate” the plaintiff on social media platforms.

In France, in 2016, a man was convicted of threatening his ex-girlfriend and sentenced to three months in prison after sending her a gun emoji. The court said it translated to a “Death threat in the form of an image.”

In civil cases in the U.S., the “thumbs up,” “fist bump,” “handshake,” and “glasses” emojis have variously constituted an agreement or an intention to enter into a contractual agreement.

Other emojis are less definite in their interpretation. The monkey or pig emojis may be insulting, degrading, or racist depending on ...

LAPD Officers Accused of Entering Names of Innocent People Into Gang Database

Officers from an elite division within the Los Angeles Police Department (“LAPD”) are under investigation regarding allegations that they falsified reports and listed some innocent people as gang members.

LAPD Police Chief Michel Moore announced in January that he was seeking to fire one officer for his role in falsifying the records. “The California Gang Database is a critical tool for law enforcement in its efforts to solve violent crime,” Moore said. “The information entered must be accurate. We are committed to holding anyone who falsified information accountable and will also fully cooperate with the State Attorney General Office.”

In a letter sent on February 10, 2020, to the LAPD, Attorney General Xavier Becerra promised an independent audit of the department’s CalGang entries. “We do not have a full or clear picture of what occurred, but we know enough that we must act,” Becerra said.

While Becerra acknowledged that those wrongly added to the database could be subjected to additional police scrutiny, he defended CalGang as a “good policing tool that keeps the community safe.” Nearly 80,000 persons are listed in the database.

In 2016, a state audit of CalGang revealed racially biased entries, violations of civil ...

‘No-Knock Raids’ an Increasing Danger to Public Safety

Julian Betton was in his home minding his own business when the police crashed through his front door. The cops entered without knocking or identifying themselves as law enforcement, and Betton reacted as any citizen would to masked individuals shouting threats and brandishing weapons: He confronted the armed intruders with a gun of his own. The police shot him nine times, paralyzing him from the waist down and severely damaging his internal organs.

Betton was a victim of an aggressive form of warrant service called “dynamic entry,” commonly known as “no-knock” warrants. Police officers argue that no-knock warrants are necessary to ensure their safety and to prevent suspects from destroying evidence. Yet there is no evidence to suggest that serving warrants this way is safer for either law enforcement or citizens. In fact, when police masquerade as violent home invaders, they often provoke an armed response that results in serious injury, and even death in some cases, for everyone involved.

With no-knock raids, police departments have taken a page out of the military’s playbook. In recent years, the U.S. Department of Defense’s 1033 program has promoted the militarization of law enforcement by providing cops with surplus military ...

Massachusetts Supreme Judicial Court Clarifies Standards for Exit Order and Patfrisk

The Supreme Judicial Court of the Commonwealth of Massachusetts affirmed the suppression of evidence resulting from a patfrisk that was conducted after the defendant had exited his vehicle unprompted by police, and twice looked back into it during his encounter with officers.

Manuel Torres-Pagan (“Torres”) was pulled over in a Springfield, Massachusetts, neighborhood because officers noticed his windshield was cracked and his inspection sticker expired. After officers turned on their lights, Torres pulled over into the driveway of a residence and exited the vehicle without being instructed to do so by the officers. He remained standing outside the vehicle with the door open as officers approached. On more than one occasion during the encounter, Torres turned to look inside the vehicle.

The officers decided this was “furtive” behavior, placed him in handcuffs, and performed a patfrisk on him. They found a knife in his pants pocket. They then asked him if he had any other weapons. He responded that he did, and they located a firearm on the floor of the driver’s side of the vehicle.

Prior to trial, Torres filed a motion to suppress the evidence of the weapons, claiming they were the result of an ...

A Mass Purge of Misconduct Records by Phoenix, Arizona Police

Few people realize that Phoenix police regularly “purge” the disciplinary records of police, an Arizona Republic investigation uncovered. And it’s been going on for two decades.

The Republic uncovered “more than 600 acts of wrongdoing” committed by 525 cops (out of nearly 3,000 sworn employees) in just the past five years, with 90 percent of all “sustained misconduct investigations” being purged.

Police unions hold sway. As techdirt.com pointed out in a September 9, 2019, article by Tim Cushing, “There’s nothing about American policing that police unions can’t make worse. A powerful obstacle standing in the way of accountability and transparency, police unions ensure Americans remain underserved by their public servants.”

In Phoenix, The Republic “obtained the complete list of misconduct records from the Fiscal Management Bureau, which is responsible for transferring disciplinary records from the Police Department to the city’s Human Resources Department. The Republic also obtained a list of misconduct record kept by the Police Department’s Professional Standards Bureau which conducts internal affairs investigations. By cross-referencing the two sets of records, The Republic identified hundreds of disciplinary cases that had been hidden from internal affairs and the Department’s leadership.”

Kevin McGowen was among them. The now-former ...

Cops in Missouri Exploit Loophole to Seize $2.6 Million from Innocent Citizens

According to St. Louis Public Radio, police in Missouri abused a civil asset forfeiture scheme to seize at least $2.6 million from motorists during traffic stops in 2018.

St. Charles County cops stopped people for minor traffic violations and directed the drivers to a private lot owned by Superior Towing.

Officers searched the vehicles and claimed that drug-sniffing dogs detected the odor of marijuana on the occupants’ cash.

Cops then informed the unfortunate citizens that they had two options: go to jail or sign away their possessions to the police department and leave with a traffic ticket.

Of the 39 traffic stops, one-third were conducted after midnight. While no criminal charges were filed, almost half the drivers had Hispanic or Asian surnames.

State law requires a criminal conviction before forfeiture. But the cops exploited the federal Equitable Sharing program, which allows the cops to seize assets without a conviction as long as the feds get a 20 percent cut. Legislation was introduced by Representative Shamed Dogan to close the loophole and force cops to comply with state law. But the bill was defeated due to extensive opposition by a local police lobby.

Dogan, a libertarian Republican, has ...

How Old Is That Fingerprint?

While forensic scientists have, for more than a hundred years, been able to opine that a fingerprint came from a particular person, the limitations of science did not permit them to state when the fingerprint was left by that person.

But that limitation may have been recently shattered. Using a method of matrix-assisted laser/desorption ionization mass spectrometry (“MALDI-MS”), researchers were able to track shifting levels of triacylglycerols (body oil). Pinning down the time the person touched the object and left the fingerprint would assist investigators in establishing a better timeline, in ruling out a suspect or in contradicting one’s story.

The new study, published in Analytical Chemistry by researchers Paige Hinners, Madison Thomas, and Young-Jin Lee from Iowa State University, indicates the researchers could reliably determine the triacylglycerol degradation rate for each person over the course of seven days.

“Most compounds in fingerprints can be measured using this technique,” said Lee. “But we focused on triacylglycerols as they are highly abundant and much more reliably measured than others.” The rate of degradation differed according to each individual, and more testing needs to be done using the MALDI-MS to account for multiple variables such as environmental factors and ...

News in Brief

Arizona: Tucson has a new ordinance topunish those who fail to stay outside designated crime scene perimeters, the Tucson Star reports. The law aims to halt “cop haters” with cameras, but the potential fallout is a stifling of First Amendment rights. While people should not provoke police, critics worry the new law could stop cellphone filmers or “First Amendment auditors” from filming at crime scenes and holding police accountable by posting the footage online. According to the Tucson Star, the ordinance states “A. Police officers or Community Service Officers conducting enforcement activity, investigations, and other police-related activities may restrict 2 individuals from physically entering crime scenes or areas immediately surrounding where such enforcement activity, investigations, and other police-related activities are taking place. Police Officers or Community Service Officers may establish the boundaries of a restricted area by using physical barriers, placing visual markers like caution tape, or expressly communicating that an area is temporarily restricted for police activity” and “B. If a Police Officer or Community Service Officer has established a restricted area, it shall be unlawful for any person to enter the restricted area without a Police Officer’s or Community Service Officer’s express permission to enter; or ...

 

 

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