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Criminal Legal News: July, 2020

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Volume 3, Number 7

In this issue:

  1. A Nation on the Brink (p 1)
  2. Office of Homeland Security Circumventing Warrant Requirement by Buying Cellphone Location Data from Marketing Firm (p 9)
  3. From the Editor (p 10)
  4. Using Location Surveillance to Fight COVID-19 May Chill Free Speech and Association (p 11)
  5. This Is Not a Revolution. It’s a Blueprint for Locking Down the Nation (p 12)
  6. Fourth Circuit Expands Savings Clause of § 2255(e) to Include Later Retroactivity of New Rule (p 14)
  7. Seventh Circuit: Defendant’s Statement Given to Pretrial Services Can’t Be Admitted to Impeach Witness at Trial (p 16)
  8. California Court of Appeal Explains Procedural Requirements for Vacating Felony-Murder Conviction Via Section 1170.95 Petition (p 18)
  9. Police Violence Detrimental to Public Health (p 19)
  10. Congressmen File Amicus Brief Stressing Congressional Intent That First Step Act’s New Drug Laws Apply at Resentencing (p 20)
  11. Indiana Supreme Court: Removal of Police’s GPS Tracker on Suspect’s Vehicle Not Probable Cause of Theft, Suppression of Evidence (p 20)
  12. New Hampshire Supreme Court: Police Violated Miranda in Obtaining First Statement, and State Failed to Prove Second Statement Was Voluntary (p 22)
  13. 5-Year Study Shows Police Stop Black Drivers Less Often at Night When ‘Veil of Darkness’ Obscures Race (p 23)
  14. Declassified Court Ruling Details FBI Abuses of Mass Surveillance Data (p 24)
  15. Second Circuit: Three Important Rulings Under First Step Act (p 24)
  16. Marijuana Possession in Virginia Remains Illegal But Is Decriminalized (p 26)
  17. Eleventh Circuit Holds Hobbs Act Robbery Doesn’t Trigger Career Offender Enhancement (p 26)
  18. Biden Accuser Accused of Inflating Credentials to Qualify as Expert Witness, Calling Convictions into Question (p 28)
  19. COVID-19 Creates Opportunity for Big Brother in the Sky (p 28)
  20. Perjurous New York City Cop Sentenced to a Single Day in Jail (p 29)
  21. Nebraska Supreme Court: Multiple Theft Charges for Stealing Items Belonging to Several People at Same Time and Place Violates Double Jeopardy (p 30)
  22. Fourth Circuit: Standalone Rehaif Error Requires Automatic Vacatur of Guilty Plea (p 30)
  23. Is the Death Penalty Slowly Dying Across the Nation? (p 31)
  24. Joint State-Federal Task Forces Practice Rogue Justice Under Protection of Qualified Immunity (p 32)
  25. Colorado Supreme Court: Requiring Defense to Disclose Exhibits to Prosecution Before Trial Violates Due Process Rights (p 33)
  26. Iowa Supreme Court Orders Dismissal of Charges that State Brought in Breach of Plea Agreement (p 34)
  27. Justice Office Awards $145 Million in Forensic Science Grants (p 35)
  28. Carpenter Slowly Remaking Fourth Amendment Case Law (p 35)
  29. California Federal Court Rejects Plea Agreement’s Waiver of Compassionate Release Provision (p 36)
  30. Aggressive NYPD Police Tactics Spreading COVID-19 (p 36)
  31. COVID-19 Causing Some Pretrial Detainees to Spend More Time in Jail (p 37)
  32. NY Court of Appeals: Right to Review Suppression Decision When Decision Relates Solely to a Count Satisfied by Plea but Isn’t Count to Which Defendant Pled (p 38)
  33. California Supreme Court Announces Sentencing Law Changes Apply Until Revocation Sentence Becomes Final (p 38)
  34. Report: Cops Ill-Equipped to Handle Mental Illness Crisis in Hospitals (p 39)
  35. Fifth Circuit Clarifies How ‘Pronouncement Requirement’ Applies to Supervision Conditions (p 40)
  36. Plenty of Practice Prevents Poor Police Performance (p 40)
  37. First Circuit: Sentence Imposed Under 21 U.S.C. § 841(a)(1), (b)(1)(c) Is ‘Covered Offense’ Under § 404 of First Step Act (p 41)
  38. Minnesota Supreme Court: Hotel Guests Have Reasonable Expectation of Privacy in Registry Information (p 42)
  39. Sixth Circuit: Courts May Consider Good Prison Conduct in Sentence Reduction Under First Step Act (p 42)
  40. DNA Database of NYC’s Chief Medical Examiner Plagued with Errors (p 43)
  41. Pennsylvania Supreme Court: Expired Vehicle Registration Isn’t ‘Breach of the Peace’ Justifying Traffic Stop (p 44)
  42. South Carolina Supreme Court Rejects U.S. Supreme Court’s Shifting of Burden to Defendant to Prove Absence of Exigent Circumstances in DUI Cases (p 44)
  43. Report: Risk Assessment Tools not Effective, Especially When not Used (p 45)
  44. Florida Supreme Court Abandons Circumstantial Evidence Review Standard (p 46)
  45. Sixth Circuit: District Court’s Refusal to Reduce Crack Sentence Under First Step Act Requires Justification (p 46)
  46. Courts Oppose Prosecutors’ Attempts to Right Past Wrongs (p 47)
  47. No Trust Between Police and Communities They Patrol (p 47)
  48. COVID-19 May Ring in a New Era of High-Tech Private Policing (p 48)
  49. North Carolina Supreme Court: Giving Finger to Police Not Disorderly Conduct Justifying Traffic Stop (p 48)
  50. New Technique Separates Mixed DNA Evidence to Tell Suspects from Victims (p 49)
  51. Feds Ramp up Purchase of Riot Gear in Wake of COVID-19 Pandemic (p 49)
  52. Army Veteran Serving Life Without Parole for Taking $9 (p 50)
  53. Sixth Circuit Vacates Firearms Possession Conviction; Government Showed Jury Unauthenticated Prejudicial Facebook Video Not Admitted as Evidence (p 50)
  54. News in Brief (p 51)

A Nation on the Brink

How the Killing of George Floyd by Police Sparked Nationwide Protests and Calls for Systematic Change

“If one of us is not free, none of us are free.”
– Max Mills and Ayesha Muzaffar, Co-Chairs, Students Against Mass Incarceration, University of California, Davis School of Law

The fires are burning, yet the oppressors continue to double-down. With riots in the streets of our capitals, the police and National Guard charge their armaments, preparing to quell the masses.

In cities across the country, protestors have flooded to the streets to protest the senseless murder of George Floyd, yet another unarmed Black person killed by police.

In recent years, America has experienced a string of such murders. It is with a heavy heart their names have become branded into the psyche of a generation: Breonna Taylor, Michael Brown, Eric Garner, Laquan McDonald, Tamir Rice, Walter Scott, Jamar Clark, Alton Sterling, Freddie Gray, and the list goes on ad nauseum.

The fires burn in California, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, North Carolina, Virginia, Massachusetts, Georgia, New Mexico, Texas, Rhode Island, and many other states, including the District of Columbia. Curfews have been imposed in at least 40 ...

Office of Homeland Security Circumventing Warrant Requirement by Buying Cellphone Location Data from Marketing Firm

The Office of Homeland Security (“OHS”) has been purchasing “anonymized” cellphone location data for use in Customs and Border Protection (“CBP”) investigations, according to information obtained by the Wall Street Journal.

Under Carpenter v. United States, 138 S. Ct. 2206 (2018), law enforcement agents are required to obtain a search warrant demonstrating probable cause in order to obtain a user’s cellphone-location data. However, records show that OHS has been purchasing bulk data from Venntel Inc., which purchases location history data from companies that collect it, such as those that provide cell, search, and phone-app services to users. It then “merges, categorizes and interprets disparate location data” and provides “global coverage.”

Since this data is anonymized and commercially available, government lawyers have argued that Carpenter doesn’t apply.... “In this case, the government is a commercial purchaser like anybody else. Carpenter is not relevant,” according to Paul Rosenzweig, a former OHS official and now resident senior fellow at the conservative and libertarian think tank, the R Street Institute.

But whether this information is actually “anonymous” and how it is being used calls this conclusion into question.

“The data was used to detect cellphones moving through what was ...

From the Editor

For virtually every person who’s seen the horrifying video of George Floyd’s final moments, his killing feels qualitatively different than the countless other police killings of unarmed individuals that plague America. True, there have been many others that were captured on video, and many involved a White police officer taking the life of a Black person. But for the most part, those killings occurred in an instant, or if we suspend our disbelief and push the outer bounds of credulity to the breaking point, arguably, the victims were actively resisting or otherwise posed a potential threat at the time of the killing. That simply can’t be said about the death of George Floyd.

He died as a result of being handcuffed and pinned to the ground on his stomach with two police officers applying pressure to his torso and legs and a third officer with his knee planted on the back of his neck for an inexplicable eight minutes and 46 seconds. The officer can be seen on video periodically digging his knee into Floyd’s neck with even greater force as he struggles for air and literally pleads for his life in vain. Heartbreakingly, there comes a ...

Using Location Surveillance to Fight COVID-19 May Chill Free Speech and Association

As governments act to contain COVID-19, tracing persons who have come in contact with infected persons is at the forefront of the move to contain the disease’s spread. Tracing people via location surveillance may prove to be an effective tool, but at what cost?

The Electronic Frontier Foundation (“EFF”) warns that governments’ use of location surveillance can “turn our lives into open books for scrutiny for police, surveillance-based advertisers, identity thrives, and stalkers.” The information can be used to draw “sensitive inferences,” from visits to a “health center, criminal defense lawyer, an immigration clinic, or a protest planning meeting,” EFF warned in an article.

The “fear of surveillance chills and deters free speech and association,” EFF said. “What’s more, whatever personal data is collected by government can be misused by government employees, stolen by criminals and foreign governments, and unpredictably redirected by agency leaders to harmful new uses.”

Yet several governments have used location surveillance to fight COVID-19. China reportedly built new infrastructures to track movements of massive numbers of identifiable people as a COVID-19 response. Cellphone location data to identify virus carriers was tapped by Israel; it issued quarantine orders based on that information.

The ...

This Is Not a Revolution. It’s a Blueprint for Locking Down the Nation

by John W. Whitehead, The Rutherford Institute – Commentary

“When it gets down to having to use violence, then you are playing the system’s game. The establishment will irritate you—pull your beard, flick your face—to make you fight. Because once they’ve got you violent, then they know how to handle you.”— John Lennon

Brace yourselves. There is something being concocted in the dens of power, far beyond the public eye, and it doesn’t bode well for the future of this country.

Anytime you have an entire nation so mesmerized by political theater and public spectacle that they are oblivious to all else, you’d better beware.

Anytime you have a government that operates in the shadows, speaks in a language of force, and rules by fiat, you’d better beware.

And anytime you have a government so far removed from its people as to ensure that they are never seen, heard or heeded by those elected to represent them, you’d better beware.

What is unfolding before us is not a revolution.

The looting, the burning, the rioting, the violence: this is an anti-revolution.

The protesters are playing right into the government’s hands, because the powers-that-be want this. They want an excuse to ...

Fourth Circuit Expands Savings Clause of § 2255(e) to Include Later Retroactivity of New Rule

The U.S. Court of Appeals for the Fourth Circuit held on March 4, 2020, that the savings clause of 28 U.S.C. § 2255(e) is available even if based on a court decision that existed earlier but was not made retroactive until after the direct appeal and first motion under § 2255.

When Quentin Braswell was sentenced after his 2009 conviction for federal drug and firearm charges, the Government relied on his prior 1997 North Carolina conviction for possession with intent to sell cocaine to require the sentencing court to impose a mandatory minimum sentence of at least 10 years in prison.

Because at the time the Fourth Circuit’s rule looked at the maximum sentence any defendant could have faced for a prior North Carolina conviction, Braswell’s prior met the criteria for the federal enhancement: “an offense that is punishable by imprisonment for more than one year.”

But then United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), was decided, which held that under the North Carolina sentencing scheme, a federal court cannot assume the maximum possible for sentence for any defendant for use of a prior conviction but “may only consider ...

Seventh Circuit: Defendant’s Statement Given to Pretrial Services Can’t Be Admitted to Impeach Witness at Trial

In a case of first impression, the U.S. Court of Appeals for the Seventh Circuit ruled that it is impermissible to admit a statement made by the defendant to Pretrial Services for the purpose of impeaching the testimony of a witness at trial.

In August 2014, Detective Robert Erdely recorded the Internet Protocol (“IP”) address of a computer transmitting child pornography to him over the internet. The sender was using a rare software program called “Tixati” to access the “BitTorrent” network and send the child pornography in torrent file 817e. (BitTorrent allows users to combine multiple files into one electronic package called a “torrent file.”) The IP address corresponded to an account in the name of Eva Chaparro (hereinafter “Eva” to avoid confusion) at a home in McHenry, Illinois.

Based on a tip from Erdely, the McHenry County Sheriff’s Office executed a search warrant on the home on December 2, 2014.

When police arrived at the house, only three people were inside: Eva, her husband Hector Chaparro, and Eddie Ramos. Officers found three computers, including a Compaq-brand desktop recovered from an upstairs bedroom that Eva said was where her grandson Michael Chaparro slept. An on-site forensic examination ...

California Court of Appeal Explains Procedural Requirements for Vacating Felony-Murder Conviction Via Section 1170.95 Petition

The Court of Appeal of California, Sixth Appellate District has explained the procedural requirements for adjudication of petitions filed pursuant to Penal Code § 1170.95.

In the middle of the night of June 14, 1991, John Lewis Drayton and three other men entered the Wards’ home with the intent of robbing a safe. Drayton and two of the other men were armed. Mr. and Mrs. Ward were awakened in their bedroom. One of the men then brought the Wards’ teenage daughter into the room, placed a firearm in her vagina, and threatened to rape her if Mr. Ward did not reveal the location of the safe. Drayton told the man not to rape the girl. Mr. Ward and two of the men went into a closet where the safe was located. Drayton held Mrs. Ward to the floor with his foot in the middle of her back, and he struck Mrs. Ward with his gun, grazing her head but not injuring her.

A struggle ensued inside the closet, and one of the other men shot and killed Mr. Ward. Drayton told Mrs. Ward to wait 15 minutes before doing anything, and then all four men left the ...

Police Violence Detrimental to Public Health

by Douglas Ankney

The 25,000-member American Public Health Association (“APHA”) issued a statement addressing police violence that begins: “Law enforcement violence is a critical public health issue.” And in what could be termed a “typical case in support,” Joseph Goldstein of The New York Times reported the tragic stories of Khiel Coppin and Na’im Owens — two brothers shot and killed by New York Police Department (“NYPD”) officers.

The brothers lived in the Bedford-Stuyvesant neighborhood of Brooklyn. Their mother, Denise Elliott-Ownes, was a teacher from Trinidad and Tobago who had moved to New York to pursue her dream of becoming a lawyer. Khiel was killed in 2007 because officers reportedly mistook a hairbrush inside his sweatshirt for a handgun. A few months later, Na’im turned 16 and became a regular “target” for cops.

This was the era of stop-and-frisk. Beginning in 2008, NYPD officers stopped Na’im regularly.

That year, according to Goldstein, police recorded 540,000 stops. By 2011, there were over 685,000 stops annually.

Former Mayor Mike Bloomberg claimed stop-and-frisk was a successful measure addressing gun violence. But the facts reveal guns were recovered in fewer than 0.2 percent of the stops. Stop-and-frisk was a pretext simply to routinely stop, ...

Congressmen File Amicus Brief Stressing Congressional Intent That First Step Act’s New Drug Laws Apply at Resentencing

Courts often look to Congress when interpreting the meaning of a law. They look at Congress’ intent behind the law and any statements made by legislators in drafting the law. This is the “legislative history” of the law and one of the main tools courts use to divine a law’s meaning.

But the tables were turned when three Congressmen who helped write the First Step Act filed an amicus brief, saying that both the government and the district court got it wrong in a case where the court refused to apply the new drug laws under the First Step Act after the original sentence had been vacated.

Senators Richard Durbin, Charles Grassley, and Cory Booker filed the bipartisan amicus brief on May 12, 2020, urging the U.S. Court of Appeals for the Ninth Circuit to reverse the district court’s decision. Judge Derrick Watson of the U.S. District Court for the District of Hawaii adopted the government’s reasoning that the new, more lenient drug laws couldn’t apply at a resentencing after a sentence had been vacated, but only at a new, original sentencing.

“The interpretation advanced by the executive board and adopted by the district court in this ...

Indiana Supreme Court: Removal of Police’s GPS Tracker on Suspect’s Vehicle Not Probable Cause of Theft, Suppression of Evidence

The Supreme Court of Indiana suppressed all evidence resulting from search warrants obtained on the basis that the sheriff’s department concluded a suspect “stole” the GPS device being used to track him when it failed to transmit its location for 10 days.

Derek Heuring was suspected of dealing methamphetamines by the Warrick County Sheriff’s Department, and in 2018, Officers Young and Busing obtained a warrant to attach a GPS tracker to Heuring’s Ford Expedition. The tracker was a black box, approximately 4 inches by 6 inches, and had no discernable markings. The warrant authorized 30 days of tracking, but the device failed to transmit its location after only seven days.

Officers noticed the vehicle inside Heuring’s father’s barn and believed the barn might be interfering with the signal. Ten days after receiving the last location notification from the device, the officers drove by Heuring’s home and the barn twice and confirmed the vehicle was not in the barn. However, the device was still not transmitting its location, and a technician advised the officers that this could be caused by someone tampering with the device. Officer Young tried to retrieve the device, but it was no longer attached ...

New Hampshire Supreme Court: Police Violated Miranda in Obtaining First Statement, and State Failed to Prove Second Statement Was Voluntary

The Supreme Court of New Hampshire affirmed a superior court’s decision suppressing the initial incriminating statements made by Dominic Carrier because police violated the protections of Miranda v. Arizona, 384 U.S. 436 (1966). The Court also affirmed the suppression of additional statements because the State failed to prove those statements were voluntarily made.

A 13-year-old girl, her father, Carrier, and Carrier’s mother all shared an apartment. After Carrier left for work, the girl told her father that Carrier had entered her bedroom and touched her vagina. The father called police. Officer Kekejian of the Nashua Police Department arrived at the apartment, and the father related the girl’s account to Kekejian.

Kekejian was dressed in his uniform with his gun and badge visible. Carrier returned home and entered the apartment. Kekejian immediately ordered Carrier outside and followed him onto the porch. Kekejian blocked the door to the apartment to prevent Carrier from reentering, telling Carrier the police were “investigating a matter,” and the apartment was “being held as a scene.” Kekejian pat-frisked Carrier. When Carrier attempted to use his cellphone, Kekejian took it without explanation and did not return it. Kekejian asked Carrier about entering the girl’s ...

5-Year Study Shows Police Stop Black Drivers Less Often at Night When ‘Veil of Darkness’ Obscures Race

In the largest-ever study of racial profiling by police during traffic stops, Stanford University has shown that Black people are much less likely to be stopped after sunset when “a veil of darkness” masks their race. The five-year study analyzed 95 million traffic-stop records that had been filed by officers from 21 state patrol agencies and 35 municipal police forces from 2011 to 2018.

The study was a collaboration between Stanford’s Cheryl Phillips (a journalism lecturer whose students obtained the raw data through public records requests), Sharad Goel (a professor of management science and engineering whose computer science team organized and analyzed the data), and Ravi Shroff (a professor of applied statistics at New York University who worked with Goel).

The team spent years culling through the data, eliminating records that were incomplete or from the wrong time periods (focusing on 7:00 p.m. local time when the sky is lighter or darker depending on daylight savings time), to create the 95 million-record database. The dataset provided a statistically valid sample with two important variables: (1) the race of the driver being stopped and (2) the darkness of the sky. The analysis left no doubt that the darker ...

Declassified Court Ruling Details FBI Abuses of Mass Surveillance Data

The government declassified a court order from October 2018 that details the FBI’s misuse of its access to mass surveillance data collected in partnership with large tech and communications companies.

The order detailed what many Americans suspect: Federal agencies misuse mass surveillance in contravention of controls Congress has placed on them. What was not known by most Americans is that, at least as far as the FBI is concerned, these abuses occur hundreds of times a day.

In 1978, Congress passed the Foreign Intelligence Surveillance Act, which created the eponymous FISA Court. This court was designed to allow for non-public legal authorization for federal agencies to intercept the communications of foreign agents and terrorists. Section 702, passed in 2008, expands the scope of interception methods, essentially authorizing the gathering of mass amounts of communications, such as phone metadata and complete emails. And while it was originally used to surveil foreign agents, such intercepts routinely collect the communications of U.S. citizens.

The court order issued by U.S. District Court Judge James E. Boasberg excoriated the FBI for performing “fishing expeditions through Americans’ personal emails and online messages.” The FBI has unfettered access to this database of intercepted communications, ...

Second Circuit: Three Important Rulings Under First Step Act

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit made three important favorable rulings on April 24, 2020, concerning relief under the First Step Act for career offenders, those who get released while their motion is pending, and the proper avenue for relief.

The case came before the Court after Jason Holloway’s First Step Act motion filed on February 1, 2019, was denied by Judge Charles Siragusa of the U.S. District Court for the Western District of New York, on the basis that Holloway was a career offender and therefore the First Step Act didn’t lower his guidelines range. After Holloway appealed, he was released in October, and the Government then argued his appeal was “moot” because his term of imprisonment was completed. The Second Circuit disagreed with all of this.

Holloway’s Appeal Was Not Moot

At the outset, the Court had to decide if Holloway’s appeal was moot, now that he was released from prison. A court must be able to grant some form of relief in order for a case to remain alive, or it’s “moot.” While Holloway filed for a reduced sentence under the First Step Act’s retroactive application of the Fair Sentencing Act ...

Marijuana Possession in Virginia Remains Illegal But Is Decriminalized

On May 21, 2020, the Commonwealth of Virginia became the 16th state to decriminalize possession of marijuana when Governor Ralph Northam signed Senate Bill 2 and House Bill 972.

The law, which becomes effective July 1, 2020, creates a civil penalty of no more than $25 for possession of up to an ounce of cannabis, with no jail time. A violation will be charged by a summons.

There will be no court costs. The violation won’t be recorded in the person’s criminal history, and no charges or judgments will be reported to the state’s Central Criminal Records Exchange. But if the violation occurs while the person is driving, it will go on the person’s driving record and be reported to the Department of Motor Vehicles. Additionally, past records related to arrests, charges, and convictions for marijuana possession will be sealed “except in certain circumstances.” Employers and educational institutions will be prohibited from requiring individuals to disclose those records.

The new law is the latest in progressive action taken by state Democrats since they took control of the Governor’s Office, Senate, and House of Delegates for the first time in more than 20 years. “We applaud the legislature ...

Eleventh Circuit Holds Hobbs Act Robbery Doesn’t Trigger Career Offender Enhancement

The U.S. Court of Appeals for the Eleventh Circuit held on March 24, 2020, that substantive Hobbs Act robbery is “too broad” and doesn’t qualify to require a sentencing enhancement under the career offender provision of the United States Sentencing Guidelines (“USSG”).

In a consolidated direct appeal by three defendants from the U.S. District Court for the Southern District of Florida, the question before the Eleventh Circuit was whether substantive Hobbs Act robbery (and not conspiracy to commit Hobbs Act robbery) meets the definition of a “crime of violence” under the USSG to apply a career offender enhancement to each defendant. All three argued that Hobbs Act robbery cannot support a career offender sentence because it includes violence toward property, as well as persons, which falls outside the career offender definition requiring violence toward only a person.

Under USSG § 4B1.1(a), a person may be sentenced as a career offender if (1) he is at least 18 at the time of the instant offense, (2) the instant offense is a “crime of violence” or “controlled substance offense,” and (3) he has at least two prior felony convictions for either a crime of violence or controlled substance offense. ...

Biden Accuser Accused of Inflating Credentials to Qualify as Expert Witness, Calling Convictions into Question

Tara Reade, who has accused presumptive Democratic presidential nominee Joe Biden of sexually assaulting her in 1993 when she worked for him as an aide, now faces accusations that she inflated her academic credentials to win certification as a prosecution expert witness on domestic violence in several criminal proceedings in Monterrey County, California. That county’s public defender has promised to investigate those charges and a list of clients who might have been affected is being compiled.

Questions about Reade’s credentials include whether she received an undergraduate degree at Antioch University in Washington state. A spokesman for the university said that although Reade attended classes, she received no degree, which Reade disputes. Reade later earned a law degree from Seattle University.

On May 21, 2020, Reade’s lead attorney, Douglas H. Wigdor, known for his vigorous advocacy of victims of sexual assault, further complicated the situation when he withdrew from representing her, without providing reasons for the move, stating the move was, “by no means a reflection on whether then-Senator Biden sexually assaulted Ms. Reade. Much of what has been written about Reade is not probative of whether then-Senator Biden sexually assaulted her, but rather is intended to victim-shame ...

COVID-19 Creates Opportunity for Big Brother in the Sky

Now that COVID-19 has brought about new public enforcement policies, a dystopian world where government agencies watch our every move may not be as far in the future as we might think. With the intent of observing crowd activities in public places (and private ones as well), law enforcement and health authorities have begun to utilize drones and other monitoring technologies ostensibly to forecast or prevent possible coronavirus outbreaks. These surveillance tools have proven extremely effective as “infectious disease tracking” technology, but many people are beginning to fear we must now sacrifice coveted privacy in exchange for safety.

Various applications for the technologies focus predominantly on contact tracing, including the monitoring of safe social distancing or the detection of an individual’s fever through thermal imaging. Other more general uses of drone technology involve strategic deliveries where exposure may be risky. Drone couriers now deliver pharmaceuticals to the sick, personal protection equipment to the front line, or emergency supplies to COVID-19 ravaged environments. Although these applications may sound practical and noble, local, state, and federal agencies have moved beyond mere COVID-related usage and have begun to exploit the pandemic in an effort to invade other areas of ...

Perjurous New York City Cop Sentenced to a Single Day in Jail

Pedro Barbosa lives in New York City. Michael Bergmann is a former New York City cop who was fired from the force for providing false testimony in court that could have sent Barbosa to prison for up to 15 years.

“They [referring to Bergmann and his partner] would follow me wherever I went. They’d tell me, ‘We’re going to get you off the streets,” said Barbosa in an interview with the New York Post. “If they found anything in my car, even a screwdriver, they’d arrest me for burglary tools,” he added.

Bergmann reportedly had been harassing Barbosa for months, especially since Barbosa’s driver’s license had been suspended. In the wee morning hours of February 1, 2019, on a street devoid of witnesses, Bergmann pulled his prowl car next to Barbosa’s already parked car by the curb. Seeing his nemesis, Barbosa drove away.

With no witnesses, Bergmann filed a complaint against Barbosa for first degree assault. “The defendant locked eyes with me, turned the car into reverse, floored the vehicle into reverse approximately seven feet,” testilied Bergmann. And his perjury did not stop there. “As I’m still yelling, the defendant put it in drive, turned the ...

Nebraska Supreme Court: Multiple Theft Charges for Stealing Items Belonging to Several People at Same Time and Place Violates Double Jeopardy

In a case of first impression, the Nebraska Supreme Court held on March 13, 2020, that theft from multiple owners “at the same and in the same place … constitutes a single offense,” and thus multiple theft charges violates the Double Jeopardy Clause of both the Nebraska and U.S. Constitutions.

Jonathan Sierra took part in the theft of several tools belonging to three different people from an auto shop in York, Nebraska, in 2017. He was charged with three counts of theft, among other charges, for the theft. He took his case to trial, was found guilty of those three counts, and sentenced to 16 to 20 years in prison.

On appeal to the Nebraska Supreme Court, Sierra argued that by charging him with multiple counts of theft, even though the tools taken were owned by different individuals, his convictions violate the Double Jeopardy Clause of the Nebraska and U.S. Constitutions because the theft constitutes a single offense.

The Court began by explaining that the Double Jeopardy Clause under both constitutions is designed to protect against three distinct abuses: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense ...

Fourth Circuit: Standalone Rehaif Error Requires Automatic Vacatur of Guilty Plea

The U.S. Court of Appeals for the Fourth Circuit held that the district court’s failure to give a defendant notice that he belonged to a class of persons prohibited from possessing a firearm during his plea colloquy constitutes a structural error that requires his guilty plea to be vacated. It is the first Court of Appeals to address the question of whether this error is a structural error—denial of due process—that mandates the vacatur of the guilty plea and conviction.

The Court’s ruling came in an appeal brought by Michael Andrew Gary. He was arrested in South Carolina on January 17, 2017, following a traffic stop for driving on a suspended license. An inventory of the vehicle uncovered a loaded firearm and nine grams of marijuana. Gary admitted to possessing both items and was charged under state law with possession of a firearm by a convicted felon.

Gary again ran afoul of the law in June 16, 2017, after two officers patrolling a motel parking lot smelled marijuana. As they approached, Gary had a joint in his lap. A consensual search uncovered large amounts of cash on Gary and his companion, a digital scale, a stolen ...

Is the Death Penalty Slowly Dying Across the Nation?

In 1972, the Supreme Court of the United States (“SCOTUS”) in Furman v. Georgia eliminated the death penalty. The Court, in striking down state-sanctioned killing, identified problems such as racism, arbitrary application, and the fact that ending people’s lives did little to nothing in the way of public safety.

While Furman abolished the death penalty, it did not take long to get the killing machine back up and running. In 1976, SCOTUS upheld a new set of laws in Gregg v. Georgia, paving the way to walk people back down the lonely hallway of death.

Forty-four years after Gregg, support for the death penalty is dwindling. For example, in 1998 —almost 300 death sentences were imposed in the U.S. Twenty years later, in 2018, only 43 were imposed. In the last 10 years, six states have rid themselves of the state-sponsored killings by either legislation or court order. Four others have imposed moratoriums on executions. As of April 2020, the death penalty is legal in 28 states, plus the federal government and military, according to deathpenaltyinfo.org.

For the same reasons SCOTUS tossed out the death penalty in Furman, the general public’s support for the death ...

Joint State-Federal Task Forces Practice Rogue Justice Under Protection of Qualified Immunity

Hundreds of rogue joint state-federal task forces—accountable to no one, and acting as units of vigilante justice—continually violate the constitutional rights of individuals while hiding behind the aegis of “qualified immunity.”

The concept of the “joint task force” was first initiated by President Richard Nixon in the early 1970s and designed to conduct raids as part of the “war on drugs.”

Dan Baum, author of the 1996 publication Smoke and Mirrors, suggests these entities were basically designed to be a “strike force that could kick down doors and put the ‘fear of God’ into drug offenders without burdensome hurdles like the Fourth Amendment or separation of powers.”

The ‘70s were a turning point in America’s concept of crime and punishment. On the big screen, actors like Charles Bronson in Death Wish or Clint Eastwood as Dirty Harry portrayed vengeful enforcers with no respect for social or constitutional restraints. Such restraints became viewed as impediments to “getting the bad guys”—the beginning of a social acceptance that suggested “get the bad guys, at any cost.” Hollywood fed the public’s xenophobic fear of lawless thugs by providing villains that begged to be viciously stomped out and, in so ...

Colorado Supreme Court: Requiring Defense to Disclose Exhibits to Prosecution Before Trial Violates Due Process Rights

Ending what had been a “standard case-management practice,” the Supreme Court of Colorado held that a trial court may not order a defendant to turn over his defense exhibits to the prosecution prior to trial under the discovery rule because it violates a defendant’s constitutional rights under the Due Process Clause.

The question of first impression came before the Court after the La Plata County District Court ordered Joshua Kilgore to disclose his defense strategy and exhibits to the prosecution prior to the start of his criminal trial. When Kilgore objected, the trial judge overruled the objection, saying that turning over the defense’s strategy to the prosecution would “foster efficiency and allow for a fair trial.” If Kilgore didn’t comply with the order, he would not be allowed to use any exhibits or strategy not turned over to the prosecution, the court instructed.

Kilgore went straight to the Colorado Supreme Court, requesting the Court to invoke its original jurisdiction because he would otherwise suffer irreparable harm, in that the error could not be corrected later on appeal. He argued that the trial judge’s order violated his constitutional due process rights, among other rights to which he is ...

Iowa Supreme Court Orders Dismissal of Charges that State Brought in Breach of Plea Agreement

The Supreme Court of Iowa ordered the dismissal of charges after determining the State breached a plea agreement wherein the State had promised the charges would not be brought.
A fire on January 26, 2018, burned a pole barn in Powshiek County. Poweshiek County Sheriff’s Deputy Steve Kivi believed the fire was intentionally started and focused an investigation on Montezuma firefighter Chance Ryan Beres as the arsonist. Shortly thereafter, there were additional unexplained fires, including an April 12 fire burning a grass field and a shed. And an April 29 fire burning grass that was followed by another fire on April 30 at the same location that burned an abandoned farmhouse.

Investigators obtained a warrant to install a GPS tracking device on Beres’ vehicle. An abandoned barn was burned in a subsequent fire on May 27, 2018, and the GPS tracking data showed Beres was at the scene of the fire shortly before the fire started. Beres was arrested for starting that fire.
Beres admitted to Kivi that he had started the May 27 barn fire and the April 12 grass fire. He denied starting the other three fires. Investigators later obtained cellphone records and cell-site location ...

Justice Office Awards $145 Million in Forensic Science Grants

The Office of Justice Programs at the Department of Justice recently announced grants of more than $145 million being awarded through various programs it helps to fund. These grants will cover initiatives centered on forensic science.

Notable inclusions from this total are:

• $78 million to state and local jurisdictions to help reduce DNA evidence backlogs.

• $18.7 million for funding into new or better forensic testing methods.

• $1.9 million for improving efficiency of current forensic testing methods.

• $27.3 million will go to state and local governments to fund crime labs, medical examiner’s offices, and coroner’s offices. This will also help clear backlogs of some physical evidence types.

• $5.5 million will go to fund daily operations of the National Missing and Unidentified Persons System (NamUs), which acts as a central repository for missing persons and unidentified decedents.

• $1 million will be used to fund prosecution of “cold” cases of violent crime using DNA testing.

Some readers may not know that the federal government spends tax dollars funding scientific research. But, knowing this, it’s refreshing to see the DOJ allocating at least some money to exonerating the wrongfully convicted.

According to OJP Principal Deputy ...

Carpenter Slowly Remaking Fourth Amendment Case Law

The U.S. Supreme Court issued a landmark decision in 2018, which has been slowly changing the way courts interpret the Fourth Amendment of the U.S. Constitution in our era of mobile technology — and impacting the day-to-day investigative efforts of police.

In Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court ruled that the Fourth Amendment protects data generated by mobile phones known as historical cell-site location information. Previously, police departments could make informal requests of telecom companies to produce this data.

The Court said such information creates a “detailed chronicle of a person’s physical presence compiled every day, every moment over years” and that police must obtain a warrant before accessing this data.

Since the Court issued its decision in Carpenter, it has been cited in over 450 criminal and civil cases across the country.

Lower courts are applying Carpenter in ways that limit the investigative techniques of police because the nation’s top court has signaled this shift in how we should view the expectation of privacy in a world where technology facilitates sharing personal details with third parties (usually large corporations).

In Commonwealth v. Almonor, 120 N.E.3d 1183 (Mass. ...

California Federal Court Rejects Plea Agreement’s Waiver of Compassionate Release Provision

The U.S. District Court for the Northern District of California rejected the plea agreement that required the defendant to waive his right to seek compassionate relief unless he exhausted all administrative rights of appeal for the Bureau of Prisons’ (“BOP”) failure to bring such a motion on his behalf.

The Court’s May 11, 2020, order began by asking, “Must a term of imprisonment be set in stone, no matter what happens after it is imposed?” It then posed a series of questions about what should occur if an “unforeseen tragedy,” such as “chronic illness, disability, or aging makes it impossible for the defendant to care for him or herself while incarcerated, terminal illness, and family tragedies that render the defendant the sole caretaker for an incapacitated partner or minor children.”

“What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail?” the Court asked. It found that “Congress has provided one set of answers to these questions in the First Step Act of 2019,” but the “United States attorney’s office has very different answers in this case, for this defendant.”

At issue was the plea agreement offered ...

Aggressive NYPD Police Tactics Spreading COVID-19

Like a scene out of Will Smith’s movie, Legend, one of the most iconic visual images during the New York City lockdown in the wake of COVID-19 is a photo of a lone policeman on horseback patrolling a deserted downtown street. Juxtaposed to that image is a different scene further uptown of three NYPD officers aggressively infiltrating a crowd of partygoers where no one, police nor patrons, is wearing a mask. The complex reality of this unusual setting is that some people, intent on returning to normal life, may begin to clash with police in defiance of social distancing, resulting in a risk of COVID-19 exposure on all sides of the equation.

Toward the end of March 2020, NYPD officers began to step up enforcement policies as social distancing became the catchphrase for a new order of compliance in the city. It began in Brooklyn when three individuals were arrested for failing to “socially distance themselves.” The violators were charged with obstructing governmental administration, unlawful assembly, and disorderly conduct. One of the perpetrators, a female, was ultimately thrown in jail for 36 hours with two dozen other female prisoners and all without masks, soap, or ...

COVID-19 Causing Some Pretrial Detainees to Spend More Time in Jail

In New York, persons accused of felonies are brought before a judge who decides whether to impose bail. Then prosecutors must present the evidence before a grand jury within six days and obtain an indictment. If the prosecutor fails in this process, the person can plead with the judge to go free. But Governor Andrew Cuomo suspended the six-day deadline in his March 22, 2020, stay-at-home order. New York court officials deemed grand jury hearings as non-essential while the COVID-19 outbreak is underway.

Appearing before a judge to set bail is relatively easy. It can be done via a video and a TV monitor. But convening a grand jury requires assembling a large number of people. And suspending the six-day deadline has resulted in those unable to make bail sitting in jail for longer periods. Only about one in four people charged with a felony in New York are indicted by a grand jury. Prosecutors often drop the charges within the six-day window if victims or witnesses refuse to testify or if the case appears too weak to lead to a conviction. With the suspension of grand juries, “people who could have their cases resolved, they are ...

NY Court of Appeals: Right to Review Suppression Decision When Decision Relates Solely to a Count Satisfied by Plea but Isn’t Count to Which Defendant Pled

The Court of Appeals of New York held that N.Y. Crim. Proc. Law (“CPL”) 710.70(2) grants a defendant the right to appellate review of a decision on a suppression motion when the decision relates solely to a count that was satisfied by a plea of guilty but was not the count to which the defendant had pleaded guilty.

David M. Holz was indicted on two counts of second-degree burglary. Count One involved the theft of a laptop computer, and Count Two related to stolen jewelry. Holz filed a motion to suppress the jewelry, which the trial court denied. Because Holz had prior convictions, he faced a maximum prison term of 30 years. He entered a plea of guilty to the laptop theft in Count One in satisfaction of the entire indictment in exchange for a sentence of six years of imprisonment, followed by five years of post-release supervision.

Holz appealed, contending that the trial court erred in denying his motion to suppress the jewelry. The Appellate Division affirmed without reaching the merits, holding that “the judgment of conviction on appeal here did not ensue from the denial of the motion to suppress and the latter is, therefore, ...

California Supreme Court Announces Sentencing Law Changes Apply Until Revocation Sentence Becomes Final

The Supreme Court of California announced an extension of its prior rule of when to allow application of an amended sentencing statute, such that it may be applied to a defendant’s sentence still under appeal even though that sentence resulted when his probation was revoked.

In November 2014, Douglas Edward McKenzie pleaded guilty in Medera County district court to a number of drug-related offenses. Under Health and Safety Code, former § 11370.2, each of his four previous drug offenses qualified him for an extra three consecutive years in prison per offense. However, the district court imposed a five-year probationary period and a suspended imposition of sentence.

In March 2016, after several alleged probation violations, McKenzie’s probation was revoked, and the court imposed a prison sentence that included 12 years of enhancements for his priors. McKenzie then appealed.

While awaiting review, California passed a bill that eliminated the enhanced penalties for drug-related priors. The California Supreme Court remanded to the Court of Appeal to determine if McKenzie qualified for the reduction, and it found he did. The People appealed, and the Supreme Court granted review.

The People argued that § 1237 of the Penal Code, subdivision (a), provides ...

Report: Cops Ill-Equipped to Handle Mental Illness Crisis in Hospitals

by Ed Lyon 

The U.S. Department of Labor ranks hospitals as one of the most dangerous workplaces for a person to work. It seems that hospitals are even more dangerous a venue for a mentally ill person seeking treatment, particularly when police are involved.

“Cops are not trained in best practices to talk to or help someone suffering with mental health issues, let alone in an emergency room, and often arrest or hurt people they perceive as threatening—or worse,” according to Vice.com.

A report by the Treatment Advocacy Center titled “Overlooked in the Undercounted: The Role of Mental Illness in Fatal Law Enforcement Encounters,” reveals that mentally ill people “are 16 times more likely to be killed during a police encounter than other civilians approached or stopped by law enforcement,” and it urges lawmakers to enact public policies to reduce the number of lives lost. Many, if not most hospitals, have their own security personnel. Others employ off-duty cops or even contract with a police department or sheriff’s office if located in a rural area for security. The vast majority of cops are not trained in the methods needed to deal with mentally ill citizens, of which more will typically ...

Fifth Circuit Clarifies How ‘Pronouncement Requirement’ Applies to Supervision Conditions

The U.S. Court of Appeals for the Fifth Circuit clarified how the requirement that a district court pronounce its sentence in the presence of the defendant applies to conditions of supervised release.

After Rosie, Walter, and Anita Diggles were convicted by a jury of fraud in connection with their receipt of hurricane-relief funds, the U.S. District Court for the Eastern District of Texas imposed conditions of supervised release in addition to terms of imprisonment. The court confirmed that the Diggles had reviewed the Presentence Report (“PSR”) with their attorneys and then stated: “Looking at the Revised Presentence Investigation Report, those conditions are found [under the heading] ‘Supervision Conditions Recommendation.’ Those are no longer just a recommendation; those are the conditions and special instructions that I have adopted.”

Under the heading referred to by the district court were two subheadings labeled “Mandatory Conditions” and “Special Conditions.” The Special Conditions read, in part:

“You must pay any financial penalty that is imposed by the judgment.

“You must provide the probation officer with access to requested financial information....

“You must not incur new credit charges or open additional lines of credit....

“You must not participate in any form of gambling....” ...

Plenty of Practice Prevents Poor Police Performance

It is a rare week to pass without a report of an accidental shooting by police.

The reason for better than 99 percent of these accidental weapon discharges is the lack of ongoing firearm training after a law enforcement officer completes initial academy training.

Most firearms training instructors agree the average police officer is at his or her most proficient level of firearms familiarity upon training academy graduation. This finding leads to yet another surprising fact — there is no unified standard for academy firearms training for cadets at federal and most state levels — or subsequent ongoing training programs either.

At Washington state’s Law Enforcement Training Center (“LETC”), cadets undergo 90 hours of firearms training. According to LETC firearms instructor Sean Hendrickson, “Those skills that they receive here at the academy, firearms skills, degrade pretty rapidly after they leave the academy if they’re not practicing or getting more training.”

According to an Associated Press report on December 9, 2019; Washington state’s required 90 hours of academy training topped the list of states that responded to queries about training standards. Amounts reported by other states varied, with Florida at 80 hours, Missouri at 66 hours, Utah at ...

First Circuit: Sentence Imposed Under 21 U.S.C. § 841(a)(1), (b)(1)(c) Is ‘Covered Offense’ Under § 404 of First Step Act

The U.S. Court of Appeals for the First Circuit held that a conviction for violation of 21 U.S.C. § 841(a)(1) is a “covered offense” under § 404 of the First Step Act where the defendant was sentenced under 21 U.S.C. § 841(b)(1)(c).

In January 2007, Carl Smith was found guilty of two counts of distributing crack cocaine and one count of distributing powder cocaine, all in violation of 21 U.S.C. § 841(a)(1). The presentence investigation report attributed to Smith a total of 1.69 grams of crack cocaine and 3.36 grams of powder cocaine. Because these amounts were below what was required for a mandatory minimum sentence, Smith was sentenced under subsection (b)(1)(c). However, the U.S. District Court in New Hampshire determined Smith was a “career offender” and sentenced him to 210 months.

In August 2010, President Obama signed into law the Fair Sentencing Act, which raised the crack-cocaine threshold quantities for triggering mandatory-minimum sentences. Prior to the passage of the Fair Sentencing Act, § 841(b)(1)(A)(iii) imposed a minimum sentence of 10 years imprisonment if the defendant was convicted of an offense involving 50 grams or more of crack-cocaine (aka cocaine base). The Fair Sentencing Act increased the ...

Minnesota Supreme Court: Hotel Guests Have Reasonable Expectation of Privacy in Registry Information

In a case of first impression in the Supreme Court of Minnesota, the Court held that hotel guests have a reasonable expectation of privacy in the sensitive location information found in hotels’ guest registries, and police must have a reasonable, articulable suspicion of wrongdoing to search those registries.

Police arrived at a Bloomington hotel for a “hotel interdiction” — a law enforcement strategy where officers coordinate with hotel operators to target guests who use hotels for purposes of sex trafficking or to sell/use illegal drugs. The officers requested to examine the hotel guest registry and asked the clerk for the names of any guests who had paid in cash.

Minnesota law requires all lodging establishments to collect in a registry each guest’s name and address, vehicle information, and the names and addresses of any travel companions. Minn. Stat. §§ 327.10-.13. Guests must provide this information and hotel operators must make this information available to law enforcement. Id. Failure to comply is subject to misdemeanor prosecution. Id.

The clerk provided the registry and told them the room number of a man who had paid in cash. Using the registry to identify the man as John Thomas ...

Sixth Circuit: Courts May Consider Good Prison Conduct in Sentence Reduction Under First Step Act

The U.S. Court of Appeals for the Sixth Circuit held on April 14, 2020, that a sentencing court may consider a prisoner’s good conduct in fashioning a lower sentence in light of the First Step Act.

The ruling came after John Allen filed under the First Step Act to reduce his federal drug sentence imposed in 2007, but the district court denied his request. While the court praised Allen for his “commendable” prison conduct, it stopped short of considering such conduct to reduce his sentence.

“The court’s authority to reduce defendant’s sentence is strictly limited to statutory authority,” District Judge Christopher Boyko of the U.S. District Court for the Northern District of Ohio said. He reasoned that “the First Step Act in this instance limits the court’s review to the time defendant committed the covered offense. Thus, any good behavior that occurred after the covered offense is immaterial.”

On appeal, the Sixth Circuit rejected this interpretation. Under 18 U.S.C. § 3582(c)(1)(B), a court may modify a sentence where such modification “is expressly permitted by statute,” the Court noted. While §§ 3582(c)(1)(A) and (c)(2) have “constraints” on what a court may consider in modifying a sentence after it’s ...

DNA Database of NYC’s Chief Medical Examiner Plagued with Errors

Darrell Harris was arrested for a home burglary that occurred in December 2018.

A detective from the New York Police Department (“NYPD”) told Harris his DNA had been recovered from a window of the home. Even though the arrest cost Harris his job at the John F. Kennedy Airport, he paid $25,000 for a lawyer and provided an alibi placing him in New Jersey when the burglary was committed. Then, in June 2019, police dropped the charges.

An investigation revealed that a lab technician from New York City’s Office of Chief Medical Examiner (“OCME”) had cross-contaminated the DNA sample from the window with a sample Harris had earlier provided in a sexual misconduct investigation.

“Errors like these, and the lab’s inability to detect them, should concern the public,” said Terri Rosenblatt, staff attorney for the Legal Aid Society (“Society”). “More and more often, criminal cases rise and fall on DNA evidence.”

The Society filed a Freedom of Information Law request and learned of other errors at the OCME’s DNA lab, including:

• a man who was wrongfully arrested for rape based on a confirmed DNA match from the lab (the man provided an ironclad alibi — he ...

Pennsylvania Supreme Court: Expired Vehicle Registration Isn’t ‘Breach of the Peace’ Justifying Traffic Stop

The Supreme Court of Pennsylvania described the contours of “breach of the peace” and held that operation of a motor vehicle with an expired registration sticker is a traffic violation that does not qualify as a breach of the peace justifying a traffic stop.

Victor Lee Copenhaver was convicted of driving under the influence after being arrested during a traffic stop. Prior to trial, Copenhaver filed a motion to suppress all evidence, asserting that the deputy sheriff lacked authority to conduct the traffic stop. He argued that the deputy may arrest for violations of the Vehicle Code only when he witnesses a violation that involves a breach of the peace, but an expired registration is not a breach of the peace.

In lieu of testimony at the suppression hearing, the parties stipulated that (1) the deputy observed that the registration on the truck was expired, (2) the registration number was identified as belonging to a vehicle other than the pickup truck, and (3) the deputy had training and qualifications equivalent to that of a police officer.

The common pleas court denied the motion on the grounds that the registration sticker, belonging to a different vehicle, meant the ...

South Carolina Supreme Court Rejects U.S. Supreme Court’s Shifting of Burden to Defendant to Prove Absence of Exigent Circumstances in DUI Cases

by Douglas Ankney

The Supreme Court of South Carolina rejected the U.S. Supreme Court’s ruling in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), to the extent that Mitchell shifts to the defendant the burden to prove the absence of exigent circumstances to justify a warrantless blood draw.

Kathryn Martin Key drove her vehicle across the center line, struck an oncoming vehicle, drove off the road, and hit a tree. Trooper Aaron Campbell arrived within 15 minutes of the accident. Key was transported to the hospital while Campbell stayed on the scene to investigate. In Key’s glove compartment, Campbell found an almost-empty mini bottle of Jack Daniel’s whiskey.

Campbell decided to charge Key with DUI and open container, but when he arrived at the hospital, he found Key in the emergency trauma bay — intubated and unconscious from her injuries. Campbell arrested the unconscious Key for DUI. Without seeking a search warrant, Campbell asked a nurse to draw Key’s blood and subsequent testing revealed Key’s blood alcohol concentration (“BAC”) was .213%.

Key moved pretrial in summary court to have the BAC evidence suppressed on the grounds that Campbell’s failure to obtain a warrant violated the Fourth Amendment to the ...

Report: Risk Assessment Tools not Effective, Especially When not Used

by Kevin Bliss

Risk assessment tools are not effectively reducing pretrial detention or prejudicial profiling practices in determining bail. In addition, few counties concern themselves with the effectiveness of such programs, not even bothering to monitor their results.

Two organizations looking to make the government more transparent, Media Mobilizing Project and Mediajustice, have collected information from more than 1,000 counties across 46 of the country’s states and the District of Columbia. They have built the database dubbed Mapping Pretrial Injustice (“MPI”). It was released in February 2020, along with video of in-depth interviews with 56 pretrial service agencies and detention officials. The video alleges that these tools are rarely monitored to compare with their intended goal of increasing pretrial release and decreasing missed court appearances and recidivism.

Arnold Ventures created a Public Safety Assessment to use for bail evaluation in 2012. Its intended goal is to reduce inherent biases that come into play when human judges make decisions and identify candidates for bondless pretrial release. MPI found only nine jurisdictions showing a decrease in pretrial incarceration since the addition of risk-assessment tools. Most have remained the same if not increased. Fresno County, California, adopted the Virginia Pretrial Risk Assessment Instrument ...

Florida Supreme Court Abandons Circumstantial Evidence Review Standard

by David M. Reutter

In affirming the conviction and death sentence of Sean Alonzo Bush, the Supreme Court of Florida announced it is abandoning the different standard for reviewing wholly circumstantial evidence cases.

Bush was convicted of the brutal attack on his estranged wife Nicole Bush. The couple was separated when Bush allegedly disarmed the alarm panel to Nicole’s home in the early morning hours of May 31, 2011. The medical examiner testified that Nicole was shot six times with a .22-caliber weapon, five times in the head and once in the elbow. She also sustained blunt force injuries from a baseball bat. At least three of the blows were to the top of her head, splitting her skull and bruising her brain. She also was stabbed in the left breast and right arm. She was able to call for help but died hours later from her injuries at the hospital.

Bush was arrested in September 2011. A jury returned a verdict on August 2, 2017, finding him guilty of first-degree premeditated murder, felony murder, and burglary of a dwelling with an assault. It unanimously recommended the death penalty, and the trial court imposed a death sentence for the murder ...

Sixth Circuit: District Court’s Refusal to Reduce Crack Sentence Under First Step Act Requires Justification

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held on May 15, 2020, that the refusal by the U.S. District Court for the Eastern District of Kentucky to reduce a crack cocaine sentence under the First Step Act required the court to justify why it wouldn’t reduce the sentence, especially where the old guideline range was more than double the new guideline range under the First Step Act.

After the First Step Act was passed in 2018, Marty Smith filed a pro se letter to his sentencing court asking for counsel to be appointed to see if he would be eligible for a reduced sentence under the Act. Instead of appointing counsel, the court construed his letter as a motion under 18 U.S.C. § 3582(c)(1)(B) and denied relief. The court acknowledged Smith was eligible for relief but refused to lower his sentence, citing the “need to protect the public” because statistics showed people like Smith are at high risk for recidivism.

In 2006, Smith pleaded guilty to conspiracy to distribute more than 50 grams of crack cocaine. His guideline sentencing range (“GSR”) was 168 to 210 months, but because of a prior conviction, the Government filed ...

Courts Oppose Prosecutors’ Attempts to Right Past Wrongs

by Douglas Ankney

Over the past 10 years, a growing number of reform-minded prosecutors has emerged across the U.S., seeking not only to reform current tough-on-crime practices but also to acknowledge mistakes of the past. For example, in 2018, the Wayne County prosecutor’s office opened a Conviction Integrity Unit (“CIU”) in Detroit. At least a half-dozen people were exonerated by the CIU in less than a year.

But in St. Louis, 45-year-old Lamar Johnson sits in prison where he’s been for the past 25 years for a murder he has always maintained he didn’t commit. And Circuit Attorney Kim Gardner, who now heads the office that prosecuted Johnson in 1995, uncovered evidence that prosecutors knowingly presented false testimony at Johnson’s trial and paid $4,000 to the only eyewitness in the case. That witness later recanted the testimony. But St. Louis Circuit Judge Elizabeth Hogan rejected Gardner’s motion seeking a new trial for Johnson, finding the motion was untimely by “approximately 24 years.” The issue is now bound for the state Supreme Court, as agreed to by the Missouri Court of Appeals, usatoday.com reports.

In March 2019, Philadelphia District Attorney Larry Krasner attempted to resentence a death row prisoner to life ...

No Trust Between Police and Communities They Patrol

by Kevin Bliss

The $14 billion invested in police equipment and community policing in the U.S. has not helped instill trust and camaraderie between the police and black communities, says writer and activist Philip McHarris, in an article published in The Appeal.

In fact, it only offers more opportunity for police violence and legitimizes their propensity for punishment and control.

McHarris said proponents for a more active police force in black communities stated that it built trust and partnership.

He mentioned Bill Clinton signing the Violent Crime Control and Law Enforcement Act (1994 crime bill) when he was President establishing the Community Oriented Policing Services, which increased police presence and resources in minority communities. Coincidently, it was not the first time someone attempted to increase police presence as a means of promoting community relations. It usually followed some police action of negative impact.

The Kerner Commission of 1968 reported that almost half the urban uprisings in the preceding three years were a response to some act of excessive force by police. It advocated for more jobs, improved housing, and better education instead of a greater police presence, a recommendation President Johnson ignored.

To many, more police presence is simply ...

COVID-19 May Ring in a New Era of High-Tech Private Policing

by Michael Fortino, Ph.D.

Rand Corporation, a prominent think tank known for its ability to forecast future trends, describes a post-COVID-19 era where police departments experience reduced, if not curtailed power, and are rendered nearly obsolete as a protectorate of the public from risk of a coronavirus outbreak.

Retired Police Chief Bob Harrison, in describing life in America in 2030, envisions a post-apocalyptic existence 10 years from now where our economy has all but collapsed, where we are forced to avoid any and all social interactions, and where our daily routines consist of monitoring devices that track our every move to keep us compliant. We will soon fall under the watchful eye of a newly coined law enforcement known as, “COVID Cops.”

In this post-COVID-19 world, schooling has moved online, entertainment is now experienced through compartmentalization, which may include spectator enjoyment from the protection of a viewing bubble. Brick-and-mortar stores, and our ability to touch merchandise before we purchase it, will become a thing of the past. Home theaters will be as commonplace as kitchens, and houses of worship will be experienced virtually.

Human life, as we knew it, has moved out of neighborhoods and communities and into the cozy ...

North Carolina Supreme Court: Giving Finger to Police Not Disorderly Conduct Justifying Traffic Stop

by Dale Chappell

A unanimous Supreme Court of North Carolina held on May 1, 2020, that waving the middle finger at the police was not disorderly conduct to justify a traffic stop and subsequent charges stemming from that stop.

Trooper Paul Stevens of the North Carolina Highway Patrol was assisting a stalled vehicle in Stanly County in January 2017, when Shawn Ellis went by in a vehicle with his arm out the window. He waved at Trooper Stevens and then gave him the finger. Stevens then pursued Ellis for about a half-mile until the vehicle stopped. When Stevens asked him for identification, Ellis initially refused. He was cited for resisting, delaying, or obstructing an officer.

In the trial court, Ellis moved to suppress the evidence, arguing there was no reasonable suspicion to justify the stop. In other words, he wasn’t committing a crime to justify the stop. That motion was denied, and he pleaded guilty, reserving his right to appeal the denial of his motion to suppress.

On appeal, the State argued the community caretaking exception to the warrant requirement under the Fourth Amendment was the basis for the stop, so Trooper Stevens didn’t need reasonable suspicion to stop Ellis. ...

New Technique Separates Mixed DNA Evidence to Tell Suspects from Victims

by Dale Chappell

When 17-year-old Barbara Blatnik was found dead in December 1987, Cleveland police found DNA under her fingernails, but it was a mixture of hers and her killer’s. At the time, DNA techniques couldn’t separate mixed DNA, and the case went cold.

However, a new technique used by Identifiers International separated the DNA in the mixture and then excluded the DNA from Blatnik. The result was a DNA sequence of the suspect. But who?

Porchlight Project, a nonprofit that helps families of the missing and murdered in Ohio, teamed up with Identifiers International to get that answer. “Using CODIS, [it’s] very difficult to separate mixtures with a clear major and minor contributor” of DNA, Colleen Fitzpatrick, Identifiers International’s founder, said. Using today’s genealogy techniques is a “game-changer,” she proclaimed. “It opens the door for so many other sexual assault cases that otherwise may never be solved.”

Fitzpatrick uploaded the suspect’s DNA data to GEDmatch and got a match for James Zastawnik. He was then arrested for Blatnik’s murder. This was the first case for Porchlight Project, and it was a success.

“They have done an incredible service to the Blatnik family and our police department,” Cuyahoga Falls Mayor ...

Feds Ramp up Purchase of Riot Gear in Wake of COVID-19 Pandemic

by Douglas Ankney

In preparation for what may aptly be described as “Mad Max Meets COVID-19,” the federal government has submitted “expedited purchase orders” for disposable cuffs, gas masks, ballistic helmets, riot gloves, and other protective equipment for the federal police assigned to guard Veterans Affairs (“VA”) facilities.

According to a May 17, 2020, report from theintercept.com, the special purchases were “in response to Covid-19 outbreak.”

The VA police officers were not armed until 2011 — when the Pentagon began providing military equipment to police forces around the country.

Since then, those officers have “acquired millions of dollars’ worth of body armor, chemical agents, night vision equipment, and other weapons and tactical gear,” according to a 2019 report from The Intercept.

The VA, which manages nearly 1,500 health-care facilities around the U.S., has also extended special contracts for coronavirus-related security services. More than $1.6 million in contracts has been awarded to Redcon Solutions Group (a private security company founded by Iraq War veterans) to provide guards for “Covid-19 screening security guard services.” Similar contracts have been awarded to other private security firms to guard VA facilities in San Francisco, Des Moines, Fayetteville, and elsewhere.

Additionally, the $2.2 trillion CARES ...

Army Veteran Serving Life Without Parole for Taking $9

by Douglas Ankney

Willie Simmons became addicted to drugs while in the Army and stationed abroad. In 1982, he was in Alabama and “in need of a quick fix.”

Simmons wrestled a man to the ground and took his wallet that contained nine dollars. Police arrested him a few blocks away. Simmons was charged with robbery. His trial lasted 25 minutes, and his court-appointed attorney called no witnesses. No plea deal was offered.

Because Simmons had three prior convictions — all nonviolent felonies — he was sentenced to life without parole under Alabama’s Habitual Offender Law. He was 25 years old.

Today he is studying for his GED at Holman, one of the most violent prisons in the U.S. There had been drugs all around him, but he still tries “to stay away from the wild bunch,” Beth Shelburne tweeted. Simmons got sober in prison 18 years ago.

“I just talked to God about it,” he said. Simmons’ sister died in 2005, and he hasn’t had a visitor since. “In a place like this, it can feel like you’re standing all alone,” he told WBRC-TV News, Birmingham. “Sometimes I feel like I’m lost in outer space.” 

 

Source: blackenterprise.com

Sixth Circuit Vacates Firearms Possession Conviction; Government Showed Jury Unauthenticated Prejudicial Facebook Video Not Admitted as Evidence

by Matt Clarke

In March 27, 2020, the U.S. Court of Appeals for the Sixth Circuit vacated a firearms possession conviction from the U.S. District Court for the Northern District of Ohio because the Government showed the jury a social-media video of a masked person it alleged was the defendant holding a firearm, without authenticating the video or seeking its admission as evidence.

Terrance Craig was a passenger in an SUV involved in an exchange of gunfire with another vehicle. Police saw Craig toss something into the backseat and recovered a 9 mm handgun with an extended magazine on which they later discovered Craig’s DNA. When arrested, Craig was wearing a shoulder holster. On the way to the police station, an arresting officer said he had seen a Facebook rap video of Craig holding a similar extended-magazine handgun.

Craig was charged with one count of possession of a firearm and ammunition after a felony conviction in violation of 18 U.S.C. § 922(g).

During the trial, both arresting officers told the jury about the rap video, saying it was Craig, and he was wearing the jacket from the video when arrested.

Craig admitted that he was a felon and possessed the ...

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California: The death of David Glen Ward of Petaluma was declared a homicide by the Marin County coroner in May 2020, followed by a lawsuit from David’s mother, Ernestine Ward, alleging wrongful death, excessive force and negligent supervision by Sonoma County sheriff’s deputies. Leading up to the fatal encounter, Ward was the victim of a carjacking and theft on November 24, 2019, which he reported to law enforcement, sonomawest.com reports. After Ward recovered his car, a green Honda Civic, he did not tell officers so when an off-duty deputy saw him on the road in the car three days later, police mistook him for the carjacker and pursued him. Ward ended up dead during the traffic stop – even though Ward’s face was still bruised from the carjacking. Then cops “beat, tasered, and choked” him “for nearly a minute. Ward’s body had succumbed to the abuse and he became unresponsive,” thefreethoughtproject.com reports. “As he lay on the ground, completely unconscious, only then did the cops realize Ward was the owner of the vehicle and the victim, not the perpetrator of the carjacking.” An officer said: “This is, this is the owner of the car. This is David Ward. He’s ...

 

 

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